YOU CANNOT PUT A CAVEAT WHEN ACCEPTING A PART 36 OFFER: CASE UNREASONABLY LEFT THE PORTAL: THE CLAIMANT “MISUNDERSTOOD THE RULES”

August 1, 2021 · by · in Assessment of Costs

I am grateful to barrister James Miller for sending me a copy of the decision of Deputy Master Friston in Jimenez -v- Esure Services Limited (30th July 2021) a copy of which is available here. Jimenz -v- Esure

THE CASE

The claimant was injured in a road traffic accident. The claim for damages to his car settled reasonably quickly and the only matter outstanding were damages related to the injuries.  The matter was submitted to the portal via a CNF and a medical report obtained. The claimant sought an interim payment of £1,000 to fund a psychological report.  There was no request for a stay.

The defendant did not respond to the claimant’s request. The claimant gave notice that the matter had exited the portal.  A psychological report was obtained. Proceedings were then issued under Part 7.

THE PART 36 OFFER

The defendant made a Part 36 offer of £5,350.  The claimant responded stating:

“We assume, from the terms of your offer, that our clients [sic] costs will be dealt with on post issue fixed costs basis and reasonable disbursements. If this is not correct correct then please return to us within the next 3-days”.

The claimant then wrote and stated that the offer of £5,430 for personal injuries and special damages was accepted.

“This is of course on the basis that our client’s post issue fixed costs and reasonable disbursements will be paid in addition.”

The defendant subsequently sent a cheque for the damages.

THE ASSESSMENT OF COSTS

The issue on assessment was whether there was a concluded compromise that fixed the costs to those allowable under CPR r.45.26C.

THE DEPUTY MASTER’S DECISION

James helpfully summarises the Master’s conclusions below.  Essentially things did not go well for the claimant.

“Part 36 v Contract

  • There is no provision within Part 36 for unilateral conditions or qualifications to be attached to offers.
  • The Claimant was estopped from arguing that there was a contractual non-Part 36 agreement regarding costs as the narrative to his own Bill said otherwise.
  • The notion that a counteroffer was accepted by the Defendant sending a cheque was fanciful in the context of this matter.  The Claimant should have expressly made it clear what his actual terms were.

The Protocol – interim payment and portal drop out

  • In relation to interim payments, the Protocol is set out in a procedurally chronological way.
  • 7.12 ought to be read in conjunction with 7.13 onwards.  The Claimant’s analysis that the latter paragraphs are free-standing and separate is rejected.
  • If a Claimant wishes to benefit from the provisions of paragraphs 7.12 to 7.22 and be paid an interim, he or she must obtain a stay first under 7.12.  The Claimant did not do this and therefore unreasonably exited the process.
  • It is unreasonable to seek an interim payment to fund a single medical report and interim payments are for damages, not costs.
  • The Claimant did not act in bad faith but unreasonably and he exercised poor judgment.  His solicitors tried to take full advantage.

Vehicle-related damages

  • As it has been decided that the matter settled by way of Part 36, the value of fixed costs is calculated by reference to the amount of the offer which is accepted.  Vehicle-related damages, which were settled previously and not included in the offer are therefore excluded from the calculation.

Outcome

  • The Claimant’s costs were reduced from £8246.40 to £1776.00.
  • The Claimant was ordered to pay the Defendant’s costs of the assessment proceedings as claimed in the sum of £2408.04.”

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