JBX v Frimley: 85% Costs Despite Losing the Main Trial Issue [2026]
Detailed Assessment — 2026-10-05
In JBX v Frimley Health NHS Foundation Trust (Costs) [2026] EWHC 2525 (KB), the High Court considered how to allocate costs where a claimant recovered substantial damages but lost the principal dispute about his future care. The court ordered the Trust to pay 85% of the claimant's costs on the standard basis, subject to detailed assessment if not agreed. The decision illustrates the distinction between success on an important issue and success in the proceedings as a whole.
Overview
Date: 5 October 2026
Judge: Andrew Kinnier KC, sitting as a Deputy Judge of the High Court
Court: High Court of Justice, King's Bench Division
Citation: [2026] EWHC 2525 (KB)
Nature of Proceedings: Costs following a damages trial involving disputed future care and accommodation
Key Issues:
- Overall success where the claimant lost the principal issue at trial
- Percentage reductions under CPR 44.2
- Informal settlement offers and the absence of Part 36 protection
- Whether criticisms of conduct had identifiable costs consequences
- The timing of expert expenditure and settlement negotiations
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The Facts
In JBX v Frimley Health NHS Foundation Trust (Costs) [2026] EWHC 2525 (KB), the High Court considered how to allocate costs where a claimant recovered substantial damages but lost the principal dispute about his future care. The court ordered the Trust to pay 85% of the claimant's costs on the standard basis, subject to detailed assessment if not agreed. The decision illustrates the distinction between success on an important issue and success in the proceedings as a whole.
The claimant, acting through his mother as litigation friend, sought a care regime under which he would live at home. The Trust maintained that residential care better met his needs. Most of the eight-day trial concerned future care and accommodation. The claimant lost that issue but succeeded on his disputed lost years claim, which occupied approximately half a day of the trial.
The damages were assessed at £4,341,302.86, including interim payments of £950,000 and allowing for CRU payments, together with substantial periodical payments. These were damages figures, not the amount of costs awarded. Both parties accepted that the claimant was the successful party for the starting point under CPR 44.2.
The claimant sought his costs in full. The Trust proposed paying 75% of his costs only up to 17 February 2026, with no order as to costs thereafter. The resulting 85% award throughout rejected the Trust's proposed date-based restriction while recognising its success on the principal trial issue.
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1. The Successful Party Was Not Necessarily the Winner of the Main Trial Issue
The court began with the general rule that the unsuccessful party pays the successful party's costs. At paragraph 16, the claimant's substantial damages recovery established the agreed starting point: the Trust should pay his costs.
That did not end the enquiry. CPR 44.2 requires consideration of all the circumstances, including partial success, conduct and admissible settlement offers. The judge distinguished between losing some issues along the way and losing the principal argument on which the trial substantially turned.
At paragraphs 17 and 18, he recognised that a successful party in complex litigation will commonly lose individual points without forfeiting costs. Here, however, future care and accommodation occupied the greater part of the trial, evidence and submissions. The Trust's success on that issue was a material consideration, not a minor qualification to the claimant's victory.
The eventual reduction therefore reflected a balance. The claimant remained the successful party overall, but the Trust's victory on the principal contested issue could not be disregarded.
2. A Failed Care Claim Was Not Necessarily Unreasonable to Pursue
The Trust argued that the claimant should have conceded future care and accommodation before trial. The court rejected that submission.
The claimant's proposed domiciliary care regime did not depend exclusively on one care expert. Other medical evidence supported it, including the neurologists' joint statement and oral evidence. At paragraph 21, the judge concluded:
> “it cannot be fairly said that it was unreasonable for the Claimant to run option 1 to trial”
This distinction matters. The fact that evidence failed to persuade the trial judge did not, by itself, make advancing the case unreasonable. Reasonableness had to be assessed against the evidence available, rather than inferred retrospectively from the result.
Nor did the court find that conceding domiciliary care would necessarily have removed the need for trial. Other heads of loss were not agreed until shortly before the hearing, and the lost years claim remained disputed until the end. The Trust's account of avoidable trial expenditure therefore required closer scrutiny than simply identifying the issue on which it won.
Expert support did not prevent every reduction: the claimant still recovered only 85% of his costs. It did, however, weigh against the much more substantial restriction sought by the Trust.
3. Informal Offers Did Not Provide Part 36 Protection
Neither party made a Part 36 offer. Their settlement proposals were exchanged between counsel in the fortnight before trial.
The court accepted that the Trust's offer of 29 April 2026 was closer to the final result than the claimant's offer of 5 May. That comparison was relevant, but it did not turn the Trust's proposal into a Part 36 offer or give it the rule's costs consequences.
At paragraph 23, the judge emphasised the role of Part 36 in protecting a defendant's costs position. He also noted the timing: the Trust's offers came less than a fortnight before trial, when the bulk of the costs had already been incurred. In that context, there was force in the claimant's submission that the Trust sought Part 36 advantages without having made a Part 36 offer.
The court relied on Fox v Foundation Piling Ltd [2011] EWCA Civ 790, including its warning against departing too readily from the normal costs starting point in personal injury litigation.
The judgment should not be read as making Part 36 the only route to a costs reduction. The Trust obtained a 15% reduction despite making no Part 36 offer. The distinction is between the court's discretion under CPR 44.2 and the specific protection available through a qualifying Part 36 offer. Informal offers may inform the former without securing the latter.
4. Criticisms of Conduct Needed Meaningful Costs Consequences
The Trust relied on a letter of 17 February 2026 in which the claimant's solicitors maintained that settlement could not be achieved on a residential-care basis. It argued that the letter left it no alternative but to proceed to trial.
At paragraph 20, the judge found that the evidence did not support that account. The parties attended a joint settlement meeting on 17 March and continued negotiating afterwards. The letter had not prevented either the meeting or subsequent exchanges about quantum and the reverse indemnity.
Other conduct criticisms carried little weight for similar reasons. At paragraph 24, the judge found no meaningful costs consequences from matters not already addressed. Even deficiencies in disclosure had not been shown to increase costs materially. The Trust had not satisfactorily identified such an increase, and the late-disclosed documents were only peripherally relevant to the narrowed trial issues.
For costs submissions, this is a useful distinction between identifying a procedural fault and establishing its significance to the costs order. In this case, criticism alone did not justify the restriction sought. Its connection with additional or avoidable expenditure mattered.
5. Timing and a Broad Assessment Supported a Percentage Order
The Trust's opposition to domiciliary care became unambiguous when it served its Counter Schedule and expert evidence on 13 February 2026. By then, considerable expert costs had already been incurred. The court distinguished those existing costs from later expert discussions, joint statements and attendance at trial.
The court also considered when quantum became agreed and whether the trial could realistically have been avoided. Those questions mattered to the Trust's proposed restriction after 17 February. The judge did not accept that date as a justified dividing line for costs recovery.
The decision applied the principles discussed in Welsh v Walsall Healthcare NHS Trust [2018] 5 Costs LR 1025. These include the absence of an automatic reduction merely because a successful party loses some issues, and the practical preference, where appropriate, for a percentage or time-based order over isolating the costs of an individual issue.
At paragraph 25, the court balanced overall success, the lost principal issue and the circumstances considered at paragraphs 19 to 24. It adopted a broad approach and awarded 85% of the claimant's costs on the standard basis.
That is a proportionate entitlement subject to assessment, not a finding that 85% of every amount claimed in a bill is reasonable and recoverable. The judgment did not quantify the costs. No application for a payment on account was made: paragraph 26 records that claimant's counsel anticipated resolving that question by agreement.
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Practical Implications
For Costs Lawyers
1. Separate overall success from individual issues. Identify why the client is the successful party, while addressing the importance and cost of the issues on which the opponent succeeded.
2. Connect conduct objections to expenditure. Explain the work said to have been caused or wasted, rather than relying on a list of procedural criticisms.
3. Examine the proposed cut-off date. Identify costs already incurred, issues still unresolved and the work that a concession would actually have avoided.
4. Keep entitlement and assessment separate. An 85% order fixes the recoverable proportion. It does not settle the reasonableness of the underlying costs claim.
For Litigation Practitioners
1. Consider Part 36 protection early. Do not assume that informal negotiations close to trial will provide equivalent protection against the opponent's costs.
2. Preserve the basis for pursuing disputed issues. Expert evidence supporting an unsuccessful case can be important when defending its reasonableness at the costs hearing.
3. Keep negotiating despite firm positions. The continued settlement meeting and negotiations undermined the assertion that the claimant's letter made trial inevitable.
4. Address mixed success realistically. The absence of a Part 36 offer did not guarantee full costs. A measured percentage reduction remained within the court's discretion.
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Conclusion
JBX is a practical application of established costs principles. A claimant who recovered substantial damages remained the successful party despite losing the main trial issue. That loss justified a reduction, but not the extensive restriction proposed by the Trust.
The decision brings together three points useful in costs negotiations and submissions: the reasonableness of pursuing a failed issue, the limits of late informal offers, and the need to explain the costs consequences of alleged misconduct. For practitioners dealing with substantial clinical negligence claims, those distinctions may be more useful than the 85% figure alone.
This analysis forms part of Mackenzie Costs' case law coverage for costs lawyers and litigation practitioners.
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Citation: JBX v Frimley Health NHS Foundation Trust (Costs) [2026] EWHC 2525 (KB)
Full judgment available at: The National Archives
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