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	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Williams v Devon County Council [2003] EWHC 9031 (Costs) (18 March 2003) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2003/9031.html Cite as: [2003] EWHC 9031 (Costs)

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No.11 of 2003

Williams v Devon County Council
18 March 2003
Court of Appeal, Hale & Latham LJJ

In this case the court considered the interrelationship of Part 36 offers and certificates of recoverable benefit under the Social Security (Recovery of Benefits) Act 1997.

The case is factually complex, but the court pointed out that the problem in this case was caused by the fact that the parties to this type of litigation did not always properly apply Section 8(3) of the 1997 Act under which defendants were entitled to set off only the amount of the recoverable benefits certificate against the damages for past loss of earnings and interest on that sum and not on the award generally.

In the course of his judgment Lord Justice Latham said:

"Difficulties would however arise where a compensator had made an apparently appropriate calculation or had provided information clarifying the offer or payment notice so that the payment could be said to have been properly made.

In such a situation it was possible that the compensator might have over-estimated the period for which for example lost earnings would be awarded and accordingly the amount of recoverable benefits to be offset against that but under-estimated the amount of general damages.

A Part 36 payment based on those calculations would be in accordance with the rule and could produce a gross sum which was greater than the sum awarded by the Judge at trial.

In that situation, where the effect of the miscalculation by the compensator as to the relevant amount of recoverable benefits had impinged upon the general damages figure, justice required the court to exercise its discretion under Rule 36.20. The touchstone was that the claimant was entitled to the full value of his general damages claim."

The court went on to say that as a result of their decision it might be necessary for the wording of Rule 36.23 to be reconsidered, but suggested that in the meantime the approach they had advocated, as set out above, would produce a workable solution consistent with the principles of the Act and with its practical application.