Legal Latest: Key cases and updates from the Eversheds Sutherland Corporate Claims team

Cases

Rehman and others v Secretary of State for Health and Social Care and others [2026]

The court reaffirms the position that medical causation in COVD-19 claims falls to the ‘but for’ test.

• 23 posthumous COVID-19 personal injury claims were struck out where the court found that the claims had no real prospect of success on the claimants pleaded cases on medical causation.
• The court considered the mechanism of injury in relation to covid-19 claims, determining that it is the actual infection from guilty Covid 19 particles, it is not an increase in circulating the virus or increase in the risk of probability of infection.
• This case highlights the difficulties faced by claimant’s in establishing medical causation in personal in jury claims for COVID-19.

The claim before the court concerned allegations against the secretary of state relating to the failures surrounding the relevant guidance in the first wave of the pandemic that did not require new care and/or nursing home admissions of asymptomatic residents to be subject to a 14 day isolation period.

This case examined the technical arguments advanced by the claimants that medical causation should be assessed on the principle of material contribution set out in Bonnington.  The claimants accepted they could not show that the infectious particles that caused an individual resident’s infection were “guilty” particles linked to negligence. The principle of material contribution requires proof that tortious exposure actually contributed to the injury, not merely to the risk of it. The court also found that the Fairchild principle should be reserved for cases where scientific contribution is inherently impossible. The distinction was made between mesothelioma and Covid-19. Whilst attribution is difficult in cases of Covid-19 it is not but not impossible, the issue being lack of evidence, not a scientific bar.

Key takeaways

• Covid 19 claims must be proved using ordinary “but for” causation, unless a claimant can establish that a case genuinely meets Fairchild’s narrow criteria.
• Courts will distinguish clearly between material contribution to harm and material contribution to risk.
• Claims without strong evidence on causation are likely to face early challenge.

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Smithstone v Tranmoor Primary School [2026] 

Recovery of costs following split trial Part 36 Offers

• The Court of Appeal considered whether a liability only Part 36 offer (here, a 90/10 split) can trigger the costs consequences under CPR 36.17.
• The ruling departs from the previous authority of Mundy v TUI [2023], that Part 36 liability offers are incompatible with costs consequences of CPR 36.17.

The claimant, aged 10 years suffered an injury to his hand when his fingers trapped in a door. The claimant made a Part offer on liability 90:10 in favour of the claimant. The claimant also made a part 36 offer on damages of £3,500.00.

Settlement was agreed at court on the day of the trial, without the trial having commenced. The court approved the settlement, and awarded fixed costs. The court rejected the claimant’s position that costs consequences of 36.17 applied (bound by the High Court ruling in Mundy).

The Court of Appeal overturned Mundy, relying on two relying on two earlier Court of Appeal precedents:

• Huck v Robson (Beating the 95/5 liability offer entitled the claimant indemnity costs)
• Broadhurst v Tan (Part 36 policy priding a generous outcomes for successful claimants is not unfair to the defendant).

The Court found that the liability offer made by the claimant was a genuine offer made to promote settlement, however the claimant’s appeal was dismissed. Despite winning the legal principle, the Claimant did not get enhanced costs because:

• Liability was never decided (no finding of 100% liability).
• Without a judgment on liability, the claimant could not be said to have bettered the 90/10 offer.

The decision provides clarification surrounding costs consequences in relation to Part 36 offers on liability. While a 90:10 liability offer can in principle engage CPR 36.17, on the facts of this case the outcome was not "at least as advantageous" prescribed by CPR 36.17(4) because liability was never determined. The outcome will likely encourage an increase in Part 36 offers on liability.

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Thomas v Secretary of State for the Home Department 

A consent order has the effect of a judgment for the purposes of CPR 36.17 costs consequences.

The court gave judgment on the issue of liability relating to the unlawful detention of the claimant. The issue of quantum was deferred for further submissions. The parties reached agreement as to quantum in the sum of £16,000 that was formalised in a consent order filed by the parties. The settlement sum was for a sum more advantageous than the claimants previous Part 36 offer.

The key issue to be determined was whether the costs consequences of 36.17 are engaged where settlement is formalised in a consent order, where the claimant had beat his previous Part 36 offers on quantum. The defendant’s position was that for 36.17 to be engaged there must be judgment. The claimant argued that the consent order equated to judgment, the ‘difference being merely semantic’.

The Rules

CPR 36.17

Subject to rule 36.24, this rule applies where upon judgment being entered—

(1) 
(a) a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer; or

(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer.

(4) Subject to paragraph (7), where paragraph (1)(b) applies, the court must, unless it considers it unjust to do so, order that the claimant is entitled to—

(a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

The court held that the true effect of a Consent Order is to enter judgment in favour of the claimant in the sum of £16,000. It is enforceable in precisely the same way as if the Court had awarded damages to the Claimant at the end of the trial. The usual costs consequences applied from the date of expiry of the Part 36 offer.

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Taha Pharmaceuticals v Capsugel Belgium NV [2026] EWCA Civ 38. 

The risk of non-compliance is the refusal of relief from sanctions.

The Court of Appeal considered whether the claimant should receive relief from sanctions after failing to comply with an Unless Order requiring £800,000 security for costs.

The court will not reconsider or re-open questions about the proportionality of an unless order when considering relief from sanctions. Denton applies to the court considering relief pursuant to CPR 3.9 and parties conduct is a critical factor.

The Facts:

• Taha Pharmaceuticals claimed that the defendant supplied a capsule sealing machine with used/poor components (breach of contract) or misrepresented it as new.
• The defendant sought security for costs due to concerns over recoverability.
• After long delays and earlier non-compliance, the TCC issued an Unless Order requiring £800,000 security by 21 May 2025, or a “safety valve” option: £50,000 + an application for extension.
• The claimant did not comply, and the claim was struck out. The claimant for relief from sanctions; the application was refused. A subsequent application to vary/revoke the 1 August order was refused on 13 August 2025.
• The claimant then sought permission to appeal against both orders to the Court of Appeal (Civil Division) challenging the refusal to grant relief from sanctions that would have reinstated its struck-out claim.

The Law

• CPR r.3.9 - Relief from sanctions
• Denton & Others v TH White Limited [2014] 1 W.L.R 3926 - Three-stage test for relief from sanctions
• The Commissioner of Police of the Metropolis v Abdulle [2015] EWCA 1260 - Principle that courts will not generally reconsider or re-open questions about the proportionality of an unless order when considering relief from sanctions.

The applicant submitted that the judge had "closed his mind" at stage two of the Denton test to the possibility that anything other than dismissal of the reinstatement application was open to him and that he had failed to carry out the necessary balancing exercise required at stage three by looking at all the circumstances of the case; the judge had failed to consider proportionality.

The Decision

The court, having found that the judge was entitled to strike out the claim in accordance with his earlier unless order, refused the application for permission to appeal against the orders of 1 August and 13 August 2025 on the basis that it had no real prospect of success. The Denton test was appropriately applied, the judge did consider all of the circumstances (stage 3 of the test). Proportionality of the original order could not be reopened. Even if the claim were re-instated the claimant was still unable to comply with the unless order to provide the security ordered.

This case reinforces the courts approach where parties fails to comply with orders. The proportionality of an unless order, not challenged when made will not be re-opened when considering relief from sanctions.

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Other News

House of Lords amendment to Terminally Ill Adults (End of Life) Bill following concerns raised for victims of occupational diseases.

House of Lords amendment to Terminally ill Adults (End of Life) Bill following concerns raised for victims of occupational diseases. The Fatal Accidents Act 1976 allows the dependants of deceased victims – (e.g  mesothelioma victims) to claim compensation. Section 1(1) of the act states that claims can only be brought ‘if death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages’

The Bill in its present form, means that where a mesothelioma victim qualifies for and chooses an assisted death, defendants could seek to argue that their death would not be “caused by” any negligence or breach of duty: it would be caused by their choice of a legal assisted death. Additionally, even if causation could still be laid at the door of the tortfeasor, there would issues surrounding contributory negligence.

Mazur – update

The Legal Services Board, the Association of Personal Injury Lawyers (APIL), and the Law Centres Federation have all been granted permission to intervene in next month’s Mazur appeal (listed for hearing on 24 February) to assist the court in reaching a decision and support clarity on issues that matter for the regulation of legal services