PART 36: THE UNCERTAIN PROGNOSIS AND THE CLAIMANT’S CONUNDRUM: FIVE POINTS TO THINK ABOUT

The earlier post on the Court of Appeal decision in Briggs -v- CEF Holdings Ltd [2017] EWCA 2363 (Civ) gives rise to a conundrum that claimants (and sometimes defendants) have to address.  How do you advise a client when a Part 36 offer is made when there is an uncertain medical prognosis? There is no definitive answer to this problem. Here are five things to think about. (This may be a good time to remind people that there is a comment section at the foot of this post. Any comments and points to consider would be welcome).

THE DECISION IN BRIGGS

The claimant did not accept an offer made early in proceedings. The prognosis was uncertain. The Court of  Appeal that uncertainty of prognosis was not a good enough reason to displace the usual consequences of accepting a Part 36 offer late.

“…the important point is that there is a general rule which emerges from Part 36, namely, that if the offer is not accepted within time then the claimant bears the costs of the defendant until such time as the offer is accepted. If, of course, the offeree can show injustice, then a different situation will prevail – but it is up to the offeree to show injustice, not simply that it may have been difficult to form a view as to the outcome of the litigation”

THE CLAIMANT’S CONUNDRUM

This conundrum faces not only the claimant but his legal team and, if relevant, any insurer covering the claimant’s costs or liabilities.  These people want certainties at a time when certainty is not possible.

POINT 1: TELL THE CLAIMANT OF THE RISKS

The point was made in the previous post that litigation can be a harsh world. A claimant can be totally blameless, as honest as the driven snow, but still face costs consequences if they fail to beat a Part 36 offer. The effect of this could (depending on the funding arrangements ) eat heavily into their damages.  The risks are high and should not be sugar-coated.

POINT 2: DO YOUR LEVEL BEST TO ASSESS THE LIKELY VALUE OF THE CASE

A claimant has to make an educated guess. An effort must be made to:-

• Assess the lowest realistic award if the prognosis improves.
• Assess the most likely award.
• Assess the highest realistic award should the prognosis be bleak.

This is never going to be an easy job. However telling a claimant they may get “much more”, or “much less” is of very little assistance.  An attempt should be made to ensure the claimant can make a fully informed view as to whether the potential gains justify the risks.

POINT 3: PIN YOUR DOCTORS DOWN AS BEST YOU CAN

The primary difficulty here is that doctors are, by nature, scientists. They like to work with as much material as they have before they give a definitive view.

• If a Part 36 offer is made then a definitive view may well be a luxury.  Tell the doctor that an offer is made and that a difficult decision has to be made.
• Ask the doctor for the range of outcomes.
• Ask the doctor to give a view of the most likely outcome on the balance of probabilities.

Some experts may require assurance on this point. Having informed you that they can only come to a clear view at two years post operation they are unlikely to take kindly to a request for a definitive view now. Explain that you understand their dilemma, however the claimant is attempting to assess the risks posed by an offer of settlement,  their views – even at this stage – on the most likely outcome will assist.

POINT 4: LOOK AT ANY CLAIM FOR SPECIAL DAMAGES WITH EXTREME CARE

It is easy, perhaps too easy, to draft a special of damages that looks both appropriate and substantial. Take a close look at this Schedule.

• Are the assumptions the schedule makes realistic and supported by the evidence.
• Are the figures correct and based on the appropriate multipliers?
• Again ask what the range of awards is for special damages and, consider, on the balance of probability what is likely to allowed. No apologies are made for the point that damages have to be proven at trial.

POINT 5: REVIEW THE RISKS POSED BY THE PART 36 OFFER REGULARLY

It is dangerous to simply let the 21 days pass by.  The risks posed by an offer have to be reconsidered whenever a substantial new piece of evidence arrives (whether it be for the claimant or defendant).  There are dangers in allowing an offer to be overlooked.  Forgetting about a Part 36 offer can have the, almost automatic, effect of ensuring that the evidence starts to favour the party making the offer and hamper the recipient of that offer.