Lord Justice Bean, in the Court of Appeal, said a 90:10 liability offer is not ineffective in principle under CPR 36.17 and treated a settlement order in a child's school injury claim as a judgment.
Key facts
- Who: Parties to a fast track personal injury claim in which a claimant made an offer to settle liability on a percentage basis
- From: 16 January 2026 (judgment date)
- Source: Jayden James Smithstone v Tranmoor Primary School
In Smithstone v Tranmoor Primary School [2026] EWCA Civ 13, the Court of Appeal (Civil Division) considered the costs recoverable on settlement of a fast track personal injury claim. Lord Justice Bean gave the judgment, with Lord Justice Phillips and Lord Justice Stuart-Smith. It was handed down on 16 January 2026, following a hearing on 2 December 2025. The appeal came from the Sheffield County Court.
Background
The claimant was aged 10 when his fingers were trapped in a door at his primary school on 25 September 2018. He alleged negligence and breach of the Occupiers Liability Act 1957. The claim entered the Low Value Fixed Costs regime in October 2018.
In December 2018, before any medical report was served, the claimant made a Part 36 offer to settle liability on a 90/10 basis. The school rejected it. The claim was later allocated to the fast track and listed for trial. The school denied liability and raised contributory negligence.
On 26 November 2020, the day of the trial, the school's witness did not attend and the parties negotiated. The claim settled at £2,650, and a deputy district judge approved the sum. The question then was whether the claimant's solicitors should recover fixed costs, as the school argued, or whether the case fell outside the fixed costs regime under CPR 36.17, as the claimant argued.
The questions
The first question was whether the order made by the deputy district judge was a "judgment" for the purposes of CPR 36.17. The second was whether an offer to settle liability on a 90/10 basis, with no sum of money specified, can in principle be effective under that rule.
The decision and reasoning
On the first question, Lord Justice Bean had no doubt that the order recorded on the court's General Form of Judgment or Order was both a judgment and an order, and that trying to distinguish the two was misconceived. He pointed to two of its paragraphs. One stated that the defendant shall pay damages and costs to the claimant's solicitors by a set time. The other ordered payment of fixed costs summarily assessed at £7,114.50.
On the second question, he relied on Huck v Robson [2002] EWCA Civ 398. In that case the Court of Appeal held a 95:5 liability offer effective even though no trial judge would have split liability that way. He also cited Broadhurst v Tan [2016] EWCA Civ 94. There, Lord Dyson MR described the outcome for a claimant who makes a successful Part 36 offer as generous, and consistent with the policy of giving claimants incentives to make offers.
He disagreed with any suggestion in Mundy v Tui that a 90:10 liability offer is ineffective as a matter of principle to engage CPR 36.17. He noted that the claimant in Mundy had made other offers and recovered far less than he had sought. The courts, he said, should encourage settlement of specific issues where the case as a whole cannot be settled.
What this means for parties to injury claims
Lord Justice Bean rejected the argument that a liability-only offer on a percentage split cannot engage CPR 36.17 in principle. He also found that the order approving the settlement and requiring payment in this case was both a judgment and an order. Anyone making or receiving a Part 36 offer in a fast track claim should check how the offer and any settlement order are worded, and get advice before a deadline passes.
Sources
- Jayden James Smithstone v Tranmoor Primary School [2026] EWCA Civ 13, Court of Appeal (Civil Division), 16 January 2026: https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/13