THE DANGER (FOR CLAIMANTS) OF LEAVING PART 36 OFFERS OPEN: CLAIM £125,000, GET £950

It is worthwhile for every litigator (and insurer) to take a quick read of the report on Hogg -v- Newton (Teeside County Court 18th May 2018) which is reported on DAC Beachroft’s website.*  It shows the importance,  to a claimant in particular, of ensuring that every aspect of a claim is included in a Part 36 offer. It also shows the dangers of failing to withdraw a Part 36 offer.

THE CASE

The claimant was injured in a road traffic accident.

  • In February 2013 the claimant’s solicitors made a Part 36 offer of “£1,600 in full and final settlement of this claim”. The accompanying letter also referred to the offer being “for the whole of our client’s claim”.
  • In March 2014 the personal injury aspect of the claim was settled at a net sum of £650.00.
  • Proceedings were issued in March 2016 (by a different firm of solicitors). The claim was put at over £125,000 with a hire claim of over £122,000.

THE DEFENDANT’S ACCEPTANCE OF THE OFFER

The defendant’s solicitor noted that the claimant’s offer had never been withdrawn. They therefore accepted the offer and paid the balance due under the offer of £950. They then applied for a declaration that the claim had been compromised.

THE DECISION OF THE DISTRICT JUDGE: DEFENDANT SUCCESSFUL

District Judge Reed granted the defendant’s application.

  • The judge did not accept the claimant’s argument that the reference to the “whole of the claim” should be read as meaning “except credit hire”.
  • Nor did the judge accept the argument that the offer lapsed on payment of the resolution of the personal injury claim.

THE DECISION ON APPEAL: CLAIMANT’S APPEAL FAILED

On appeal the claimant attempted to argue that the offer made was not a Part 36 offer because it did not have all the wording required for a Part 37 offer.

  • His Honour Judge Gargan rejected that argument. A reference in the claimant’s letter “seeking the full sanctions available under Part 36” was sufficient and could be read as being part of a valid Part 36 offer.

HHJ Gargan also rejected an argument that settlement of part of the claim revoked a Part 36 offer

  • The offer had never been withdrawn.
  • The conclusion that the offer was open was more consistent with the overriding objective.

The Circuit Judge agreed with DJ Reed that the natural meaning must be given to “the whole of our client’s claim”, this included the claim for credit hire.

*This post is based on the article on the website. I have not seen a transcript of the entire judgment.  There is a more detailed account of the case on the website.