The High Court has ordered Frimley Health NHS Foundation Trust to pay 85 per cent of a claimant’s costs after a clinical negligence dispute in which the claimant won substantial damages but lost the principal argument over future care and accommodation.
What did the High Court decide on costs?
In JBX v Frimley Health NHS Foundation Trust (Costs) [2026] EWHC 2525 (KB), handed down on 5 October 2026, Andrew Kinnier K.C., sitting as a Deputy Judge of the High Court, considered who should bear the costs following the earlier judgment on damages.
The court began from the position that JBX was the successful party. His damages, including interim payments of £950,000 and allowing for CRU payments, had been assessed at £4,341,302.86, together with substantial periodical payments. Under the general rule in CPR 44.2, the Trust would ordinarily therefore pay his costs.
The issue was whether that general rule should be modified because JBX had failed on the principal dispute concerning his future care and accommodation.
Why was JBX still the successful party?
The judge distinguished between overall success and success on individual issues. Although the Trust won the future care and accommodation dispute, JBX succeeded in obtaining a substantial damages award and won the separate lost years claim.
- Damages: £4,341,302.86, including interim payments and allowing for CRU payments.
- Future care: the Trust succeeded on the principal dispute over the appropriate care and accommodation arrangements.
- Lost years: JBX succeeded on this claim at trial.
- Final costs order: 85 per cent of JBX’s costs on the standard basis.
The judge noted that a successful party does not normally lose part of its costs simply because it has failed on one or more issues. The position can be different where the claimant loses the principal argument on which the outcome of the proceedings substantially turned. That was the reason the court had to undertake a broader balancing exercise in this case.
What was the main dispute at trial?
The central dispute concerned JBX’s future care and accommodation. JBX favoured domiciliary care in his own property, while the Trust’s case was that residential care better met his complex needs.
The costs judgment records that the future care and accommodation issue occupied the greater part of the eight-day trial. The factual and expert evidence and the parties’ submissions were substantially directed to that question, whereas the lost years claim required only around half a day.
The court nevertheless found that it was reasonable for JBX to take the domiciliary-care option to trial. Domiciliary care had support from medical evidence, including evidence from Dr Prasad and Dr Igboekwo, and the judge rejected the argument that the claimant should have conceded the issue before trial.
- The Trust served its Counter Schedule and expert evidence, making its opposition to domiciliary care clear.
- The parties attended a joint settlement meeting, but the claim was not settled.
- The Trust made a £4 million settlement proposal together with proposed periodical payments and a reverse indemnity.
- JBX made a final offer involving a £6.5 million lump sum and £950,000 annual periodical payments from December 2028, subject to a reverse indemnity.
- The consequential costs hearing took place.
- The High Court ordered the Trust to pay 85 per cent of JBX’s costs.
Why did the absence of a Part 36 offer matter?
A significant factor was that neither side made a Part 36 offer. The parties exchanged other offers between 20 April and 5 May 2026, but none qualified as a Part 36 offer.
The Trust argued that its 29 April offer was closer to the eventual result and should support a different costs order. The judge accepted that it was closer to the final result than JBX’s 5 May offer, but held that Part 36 provides the mechanism by which a defendant can protect its position on costs.
Relying on the approach in Fox v Foundation Piling Limited [2011] EWCA Civ 790, the judge considered that the Trust had not taken the steps needed to obtain the costs protection that a Part 36 offer can provide. The Trust’s offers were also made less than a fortnight before trial, by which time the bulk of the costs had already been incurred.
Part 36 provides the mechanism by which a defendant should protect its position, but the Trust took no steps to do so.
Andrew Kinnier K.C., [2026] EWHC 2525 (KB)
The court also rejected the suggestion that JBX’s 17 February letter had forced the Trust to proceed to trial. The parties attended the March settlement meeting and continued negotiating afterwards, so the evidence did not support the argument that the letter had been an insurmountable obstacle to settlement.
What did the court ultimately order?
The judge concluded that the costs decision required a balance between competing factors. JBX had secured substantial damages and was therefore the successful party overall, but he had lost the principal battle concerning future care and accommodation. He had, however, won the lost years claim, and the court found that it had been reasonable for him to pursue his preferred care option at trial.
Taking all of those matters into account, the court adopted a broad-brush approach and ordered that Frimley Health NHS Foundation Trust pay 85 per cent of JBX’s costs on the standard basis, subject to detailed assessment if the parties could not agree them.
The court made no further order concerning a payment on account because no application for one had been made.
Frequently asked questions
Who was the successful party for costs purposes?
JBX was treated as the successful party overall because he secured substantial damages and periodical payments, although the Trust won the principal dispute over future care and accommodation.
How much of JBX’s costs must the Trust pay?
The High Court ordered the Trust to pay 85 per cent of JBX’s costs on the standard basis, subject to detailed assessment if the amount is not agreed.
Did the Trust make a Part 36 offer?
No. The judgment states that neither party made any offer under CPR Part 36. The Trust made other settlement offers shortly before trial, including an offer on 29 April 2026.
Why did the claimant not recover all of his costs?
The claimant lost the principal dispute over future care and accommodation. That issue occupied most of the trial, so the court considered it appropriate to depart from the usual position that the successful party recovers all of its costs.
Was the 17 February 2026 letter treated as causing additional costs?
No. The judge found that the letter had no costs consequences because the parties still attended the joint settlement meeting and continued negotiations afterwards.