18th March 2021
Simon Browne QC and Anthony Johnson acted for the successful Defendant/Respondent in the Court of Appeal in this case which sought to explore the correct interpretation and the validity of a Claimant’s Part 36 offer for the purposes of determining whether the costs consequences set out in CPR 36.17 should apply.
The Court of Appeal agreed with the judges below that the Claimant had not beaten two 90:10 split liability offers in a situation where primary liability/breach of duty had been admitted but where the Defendant’s insurers sought to dispute the causation of the Claimant’s alleged injuries, successfully establishing at trial that the most serious of the two injuries that he had allegedly sustained could not be causally linked to the index accident.
Their Lordships were of the view that a reasonable reader would have concluded that the offers addressed liability and causation and were intended to address both alleged injuries. This meant that the Defendant had bettered both of the offers at trial. Further, had the Defendant accepted either offer, it would not have been entitled to dispute the issue of causation at trial that it was ultimately successful upon.
Giving the lead judgment, Asplin LJ concluded at para.22 that: “Cases of this kind turn, inevitably, on the precise wording of the pleadings and the particular terms of the Part 36 offer. In order to avoid the kind of dispute which has arisen here, especially in a low value claim, it is important to make express reference in the Part 36 offer to whether the offer relates to the whole claim or part of it and/or the precise issue to which it relates, in accordance with CPR 36.5(1)(d). In particular, if the issue to be settled is “liability”, it would be sensible to make clear whether the defendant is being invited only to admit a breach of duty, or if the admission is intended to go further, what damage the defendant is being invited to accept was caused by the breach of duty.”
The Judgment can be seen here.