The Dekagram: 19th January 2026

In this week’s Dekagram Dominique Smith examines a recent decision of the Court of Appeal considering and endorsing 90:10 split liability offers (contrary to the received wisdom following the decision of the High Court in Mundy v TUI [2023] EWHC 385 (Ch); and Robbie Parkin discusses an extraordinary case involving extraordinary rendition.

Mundy v TUI Consigned to the Dustbin of History: Part 36 Offers to Split Liability Effective Again

Last week, the Court of Appeal delivered a judgment on the important issue of liability-only Part 36 offers. Following the decision of Mundy v TUI [2023] EWHC 385 (Ch), liability-only offers have fallen by the wayside in a number of cases. The Court of Appeal in Jayden James Smithstone (a child by his Litigation Friend, Kirsty Louise Norris) v Tranmoor Primary School [2006] EWCA Civ 13 (CA) however have overruled Mundy on the issue of principle, paving the way for the resurrection of liability-only offers.

Factual background

The Claimant, who as aged 10 at the date of the accident, was a pupil at the Defendant’s school. He suffered a minor injury when his fingers became trapped in a door on 25^th September 2018.

In December 2018, prior to any medical reports being served, the Claimant made a Part 36 offer to settle liability on a 90:10 basis, which was rejected by the Defendant. Proceedings were subsequently issued alleging negligence and a breach of the Occupiers Liability Act 1957. The Defendant denied liability and raised issues of contributory negligence in its Defence.

The Claimant made a further Part 36 offer to settle the claim in the sum of £3,500 in March 2020. This was never accepted.

The matter was then listed for trial before Deputy District Judge Khan in November 2020. The Defendant’s witness failed to attend court thus the parties negotiated a settlement of the claim in the sum of £2,650. As the settlement required approval under CPR r21.10, DDJ Khan approved the sum on the basis that it was all to go to the Claimant. She then addressed whether the Claimant’s solicitors should recover fixed costs (as the Defendant contended) or whether the case should be treated as falling outside the fixed costs regime by virtue of CPR 36.17 (as the Claimant contended in light of the liability-only offer). DDJ Khan ultimately decided that the fixed costs regime applied. DDJ Khan proceeded to complete a county court form N24, headed “General Form of Judgment or Order”, setting out the order made.

More than three years later, the Claimant was granted permission to appeal against the costs decision by HHJ Baddeley, who heard the appeal in August 2024. The Defendant relied in the appeal on the case of Mundy v TUI [2023] EWHC 385 (Ch), in which Collin-Rice J held there was a fundamental incompatibility of 90:10 offers with CPR r36.17. HHJ Baddeley concluded that he was bound by the decision in Mundy. The Claimant subsequently appealed, arguing that each of the judges below had erred in failing to award the Claimant all, or any, of the consequences provided for under CPR r36.17(4) when the order made by the judge was a judgment which was at least as advantageous to the Claimant as a Part 36 offer which the claimant had made and there was no finding such consequences would be unjust.

When delivering the Court of Appeal’s judgment, Lord Justice Bean first considered whether there in fact had been a judgment. He noted that the wording of the N24 reflected the fact that the terms “judgment” and “order” were often used interchangeably. Further, CPR 40 also used the phrase “judgments and orders” without drawing a distinction. He considered that the order made by DDJ Khan was both a judgment and an order and any attempt to distinguish between the two terms in describing it was misconceived.

Turning then to whether a 90:10 settlement offer could be effective for the purposes of CPR 36.17, Lord Justice Bean disagreed that a 90:10 liability offer was ineffective as a matter of principle to engage CPR 36.17. In a case where liability was to be tried before quantum, he considered that the benefits of a liability-only offer in saving costs and court time were obvious. Even in a fast track case where all contested issues would be resolved by a district judge or a deputy district judge in the course of a single hearing, liability-only or quantum-only offers were still to be encouraged. The 90:10 offer was to be treated as a genuine offer to compromise. Accordingly, Mundy v TUI was overruled on the issue of principle.

However, the Claimant did not succeed on the issue of the outcome being “at least as advantageous” to the Claimant as the proposals contained within the Part 36 offer. Liability was never determined. It could not be said that the outcome of the case was a finding, even on liability, that was more advantageous to the Claimant than a 90:10 apportionment on liability. As such, CPR 36.17(4) did not apply on the facts of the case and DDJ Khan was right to limit costs to fixed costs. As such, the appeal was dismissed.

Comment

This judgment provides helpful clarity on liability-only offers. It is notable that Lord Justice Bean referred to case law in his judgment that simply was not put before the court in Mundy, where liability-only offers were deemed effective. Not only were these judgments not before the court in that case, but it appeared that no authorities were in fact referred to at all (save on the issue of set-off). Had they have been, the court in Mundy may well have reached a different decision.

About the Author

Ranked by the Legal 500 2021, 2022 and 2023 and by Chambers and Partners 2023 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

Zubaydah v FDCO: the Saga Comes to an End

In news widely reported on 11 January 2026[1], it appears that the Foreign, Commonwealth & Development Office has settled the claim against it brought by Abu Zubaydah, a detainee at Guantánamo Bay, on the grounds that the UK Intelligence Services had been complicit in the use of torture against him in 2002-2006. The settlement involved substantial- but undisclosed- damages being paid by the FCDO.

This was perhaps the inevitable consequence of the decision of the Supreme Court  Zubaydah v Foreign, Commonwealth and Development Office and others [2023] UKSC 50[2].

The Claimant, a citizen of the Palestinian territories, has been in the custody of the US Intelligence Services since 2002, following capture in a suspected safehouse in Pakistan.  He had been suspected by the US since around 1999 of being a prominent figure in Al Qaeda.

From a lawyer’s perspective, the evidence against the Claimant which has been publicly declared is unconscionably thin- seemingly little more than the fact that he was named as an accomplice in an interrogation, and possibly torture, of a third party in around 2001; and had a history of association with the then-US backed Afghan mujahideen movement. He was captured in possession of banking documents which were inconsistent with involvement in Al Qaeda, and a journal which suggested that he suffered from a significant a psychiatric illness, possibly dissociative identity disorder. He has not been convicted of, or charged with any crimes during the period of detention, and, the author suggests, almost certainly could not be on the strength of the public evidence. One supposes, or at least hopes, that rather more solid grounds for detention exist than have, or can, be made public for good reason; though the possibility that the Claimant was guilty by nothing more than association is a very real one. 

More significantly for present purposes, following capture, the Claimant was moved between a number of CIA operated black sites in (a) Thailand; (b) Poland; (c) Morocco; (d) Lithuania; (e) Afghanistan; and (f) Guantánamo Bay in land leased by the USA from Cuba (“the Six Countries”). It is his case that he was subject to torture in each of those locations.

The Claimant had no connection to the UK and had never travelled there, except possibly in US custody when one of the rendition flights on which he was held refuelled in London. However, between 2002 and 2006, the UK intelligence services were (on the Claimant’s case) sent a number of questions to the CIA to be put to him, in the expectation or intention that they be put under torture, or being reckless as to whether that was to be done. The Claimant pursued a claim in tort against the Defendant on the basis that the intelligence services had ultimately acted under its direction or those of its predecessor departments.

The Supreme Court was concerned with the question of the applicable law under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995. The general rule, of course, is that the applicable law for torts is governed by the laws of the country in which the tort occurred, or, in this case, the Six Countries.

Was the connection to the UK of the intelligence services operating here sufficient to displace that general rule such as to allow the claim to proceed in England and Wales? 

A split panel of the Supreme Court ultimately concluded by a majority that it the presumption of the application of the law of the Six Countries ought to be displaced, because:

1. The general rule presumed a meaningful connection to events in the country in which the tort occurred, that could not sensibly be said to be the case in circumstances where the tortfeasor was a foreign government acting extraterritorially.
2. UK Intelligence Services were involved in a similarly extraterritorial way, having expressed no interest in the Claimant’s whereabouts, only the fact of his custody by the CIA.
3. The Claimant’s detention in the Six Countries had not been effected under the laws of those countries.
4. The Claimant had been detained in a significant number of different jurisdictions, such that this diminished the significance of the application of the laws of any one of them.
5. The Claimant had been in US custody throughout, and the primary alleged tortfeasor was the government of the US, though for understandable reasons, neither party alleged that US law should apply- save perhaps in respect of its connection to Guantánamo Bay, itself a particularly curious jurisdiction.

Conversely, there were strong reasons for the law of England and Wales to apply in respect of the specific torts which the Claimant alleges:

1. Those particular torts, on his case, were committed by the intelligence services of the United Kingdom.
2. The alleged torts had been committed by the Defendant in the perceived national interest of the United Kingdom.
3. The presence of the intelligence services primarily in London suggested that the applicable law within the UK was that of England and Wales.

In the circumstances, the Claimant’s appeal succeeded, the law of England and Wales applied, and his claim was able to proceed.

From a purely legal perspective, this case is unlikely to be of broader significance. Particularly extraordinary circumstances, somewhat unique to their time, had to apply before the general rule would be disapplied. In the ordinary course of tort law, the number of cases in which these principles would apply must be vanishingly rare.

On the other hand, the Claimant was far from unique in his experiences during the early 2000s, and, one suspects, there may well be a number of other potential cases waiting in the wings.  Additionally, from a lawyer’s perspective, while it was to the Defendant’s credit that it saw the writing on the wall, and sought terms of settlement, quite apart from the loss caused to the taxpayer, it is hard to see this saga as anything other than very damaging to the reputation of the security services historically.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus. 

[1] https://www.bbc.co.uk/news/articles/cx2gelrxxr0o

[2] https://www.bailii.org/uk/cases/UKSC/2023/50.html