When it’s ignored by the court that made it. This is a post for claimants so read on!
As this is my first post I thought I’d let you in on something interesting I learned today. The Judicial College (the new name for the Judicial Studies board apparently) is coaching High Court judges to ignore the 2011 decision of Medway Primary Care Trust v Sebastien Marcus  EWCA Civ 750.
Cutting a long story short, Mr Marcus hit some pretty severe causation problems in his clinical negligence claim which was pleaded at £525,000. He ended up being awarded £2,000.
The issue of costs went to the Court of Appeal and May LJ, giving the majority judgment with Jackson LJ dissenting, awarded the defendant 75% of their costs as the ‘real winner’.
The defendant had never made a part 36 offer to settle the claim. The claimant always had a claim of some description, a fact that Jackson pointed out in his opinion (para 28) and the defendant was refusing to pay anything.
Well Jackson remedied the problem just 8 days later in Fox v Foundation Piling Ltd  EWCA Civ 790. At para 62 he says:
There has been a growing and unwelcome tendency by first instance courts and, dare I say it, this court as well to depart from the starting point set out in rule 44.3 (2) (a) too far and too often. Such an approach may strive for perfect justice in the individual case, but at huge additional cost to the parties and at huge costs to other litigants because of the uncertainty which such an approach generates. This unwelcome trend now manifests itself in a (a) numerous first instance hearings in which the only issue is costs and (b) a swarm of appeals to the Court of Appeal about costs, of which this case is an example.
So, the starting point is that the winner will have his costs paid. Carver v BAA was wrongly decided (if there was still any doubt) and claimants can be more certain of judicial treatment of Part 36 in the future. Future jurisprudence in this area is likely to grow out of Fox as opposed to Medway.