COMMON LAW DOCTRINE OF MISTAKE APPLIES TO PART 36 OFFERS: HIGH COURT DECISION
I am grateful to barrister Richard Wilkinson for sending me a copy of the decision of Master Thornett in O’Grady -v- B15 Group Limited  EWHC 67 (QB). The Master decided that Part 36 offers were subject to the doctrine of mistake. A mistake that was obvious was not binding on a party.
“I am satisfied that the doctrine of common law mistake can apply to a Part 36 offer in circumstances where a clear and obvious mistake has been made and this is appreciated by the Part 36 offeree at the point of acceptance. Authority is entirely in support with the application of the doctrine. Nothing about Part 36 being a self-contained code excludes it”
The claimant brings an action for damages under the Fatal Accidents Act. The Claimant’s solicitor sent a Part 36 offer.
THE OFFER AND ACCEPTANCE
The claimant meant to concede contributory negligence of 20%. Inadvertently the offer said 80%.
23 February 2021: the Claimant’s solicitor put forward a Part 36 on the issue of
liability. The offer (literally) read :-
“The Claimant offers to resolve the issue of liability of on 80/20 basis. For the
avoidance of doubt if the Defendant accepts this offer it will only be required to
pay 20% of the Claimant’s damages.”
2.5 24 February 2021: Having received the Claimant’s offer by e-mail at 15.51 on
23 February, the Defendant’s solicitor accepted it by e-mail at 10.02 on 24
2.6 24 February 2021: The Claimant’s replied by e-mail at 10.12 to make clear that
the offer that he intended to make on behalf of the Claimant was 80/20 in the
THE CLAIMANT’S APPLICATION
The claimant made an application for permission to withdraw the offer or change its terms.
SHOULD THE DEFENDANT’S SOLICITOR ATTEND TO GIVE EVIDENCE
The claimant issued an application that the defendant’s solicitor attend to give evidence on whether they suspected, or knew, that this was a mistake. However this was rendered unnecessary by a concession made on the defendant’s behalf.