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The doctrine of mistake in the context of P36 offers. Richard Wilkinson was instructed on behalf of C in a fatal accident claim on whose behalf a Part 36 offer had mistakenly been made on the issue of liability on a 20/80 basis (rather than 80/20 as had been intended). The Defendant (very promptly) accepted the offer and sought to argue there was a binding agreement because P36 is a self-contained code to which ordinary common law doctrines such as mistake do not apply. D also relied on various decisions where judges had held parties to mistaken settlement agreements reached under the Low Value PI Portal scheme.
D initially did not accept they knew or should have known that C’s offer was made in error but backed down when C issued an application to cross-examine D’s solicitor on the content of his witness statement.
In a reserved judgment Master Thornett rejected D’s arguments, accepting that a more nuanced approach was necessary in the context of Part 36 offers and that such offers had to be construed in accordance with the Overriding Objective. He accepted C’s argument that whilst self-contained, P36 was not “hermetically sealed” and that the common law doctrine of mistake could apply to P36 offers. The Claimant was accordingly not bound by the terms of her Part 36 offer in this instance.
A full copy of the judgment can be found at the link below.