In Doyle -v- the NFU (St Helens County Court 24th February 2023) Deputy District Judge Murray held that the doctrine of mistake applied to offers made on the Pre-Action Protocol for road traffic accidents. I am grateful to solicitor Jamil Mohammed for sending me a copy of the judgment which is available here. Doyle v NFU – DDJ Murray – Judgment (1)


“There is superficial attraction in the Defendant’s warning of satellite litigation. However, as explained above, the doctrine of mistake does not provide any respite for errors that are not known to the other party, and for which ignorance they cannot be criticised. It is only effective in those cases where the other party knows or ought to know of the error.”


The claimant brought a claim in the RTA Protocol for  Low Value Claims.   The claimant made a number of offers in excess of £3,000. The claimant rejected the defendant’s offer of £2,600.


The claimant set out reasons why the defendant’s offer was rejected.  However the claimant forgot to amend the global offer and agreed settlement boxes. These retained the defendant’s offer of £2,600.  This led the defendant to argue that the claimant had made an offer of £2,600 and the defendant accepted it.

“On page 3, for the first time, the Claimant included comments on the Defendant’s offer
as follows: “Your offer is unreasonable for multiple 8 months injury, if you do not make
an offer within the JCG guidelines, we have no option but to litigate. See documents
attached in relation to a physio treatment…” (sic).
15. It was quite apparent from page 2 and these comments that the Claimant was rejecting
the Defendant’s offer of £2,600 (as they had done repeatedly). However, the Claimant’s
solicitor omitted to amend the global offer and “agreed settlement” boxes. As such, these
continued to contain the figures from the Defendant’s last S2SP – £2,600.
16. Defendant’s ‘acceptance’: On 29 June 2020, the Defendant responded. It’s S2SP appears
to be the same as that sent by the Claimant on 25 June 2020 save in the following respects:
(a) Page 1 contains the date of the Defendant’s reply – 29 June 2020.
(b) On page 2, the Defendant’s figure for PSLA, “losses offered to date” and “net value
of offer to date” have all changed from £2,600 to £3,9702
(c) On page 3, the “yes” box is ticked to the “agreement reached” question. The date
of agreement appears underneath as 29 June 2020. However, the figures of £2,600
for the global offer and “agreed settlement” boxes remained unchanged.
17. Thus, the Defendant asserts that it accepted the Claimant’s global offer of £2,600.”



The issue before the court was whether there was a binding settlement.


The judge held that the doctrine of mistake applied in the Protocol.
Does the doctrine of mistake apply in the Protocol?
50. In my judgment, recognising that I reach a result contrary to that in Draper and Fitton,
the doctrine of unilateral mistake does apply in the Protocol. I am of the view that to
conclude otherwise would give rise to the risk of perverse and wholly unfair results which
would undermine rather than give effect to the Overriding Objective.
51. Take a simple example. The parties to a claim at stage 2 have been exchanging offers in
a case in which general damages for PSLA are the only head of loss. The claimant has
made offers starting at £5,000, but has steadily reduced to a figure of £3,000. The
defendant began with an offer of £1,400, and has increased to £2,200. Following a
further offer of £2,700 from the claimant, the defendant’s representative attempts to send
a counter-offer of £2,400. However, due to mistyping the number, they instead send an
offer of £24,000. The claimant immediately accepts.
52. It is apparent to all that the defendant had no intention to make such an offer. Yet, absent
the doctrine of mistake (or the approach in Harris to which I will return below), the
defendant must pay £24,000. How does this promote the Overriding Objective? A
clearly unjust result would be reached. Does the saving in court time in dealing with any
dispute that arises, or any of the other factors in CPR rule 1.1 tip the balance against that
conclusion? In my judgment it does not.
53. In the above example, the defendant mistyped merely one additional zero. On the
Defendant’s interpretation in this case, it would matter not if the mistakenly typed offer
had instead been £240,000, or £2,400,000.
54. There is superficial attraction in the Defendant’s warning of satellite litigation. However,
as explained above, the doctrine of mistake does not provide any respite for errors that
are not known to the other party, and for which ignorance they cannot be criticised. It is
only effective in those cases where the other party knows or ought to know of the error.
55. If a claimant has rejected an offer multiple times, but then mistakenly accepts the same
without any commentary to make clear this was not their intention, they will be bound.
A party may relent and accept an offer which they have rejected on many occasions for
many reasons. The other party is not required to consider possible motives for doing so.
Simply put, if it is not obvious to the objective onlooker that an error has been made –
and that assessment is made at the time of the purported settlement and not with any later
information or development – then the settlement stands regardless of the error.
56. The doctrine of mistake only aids in those cases where the other side is, in effect, seeking
improperly to take advantage of the error. In such cases, there ought not to be any need
for court time to be spent resolving the issue – it would be or ought to be obvious.
However, if there is court time spent on satellite litigation to resolve the issue, it is at the
making of the party seeking to improperly take advantage of the mistake.
57. Could the same result not be reached by adopting the approach of HHJ Davey QC in
Harris rather than by the use of the doctrine of mistake? In my judgment it cannot. With
respect to the Judge, the Overriding Objective does not provide a power to take a step
which is contrary to the rules as properly interpreted. If, properly interpreted, the
Protocol does not permit reference to the doctrine of mistake, as the Judge held, and if
there is no other mechanism within the Protocol for setting aside the settlement (none
being found to exist), the Overriding Objective offers no further power.
58. In my judgment, the correct approach is to interpret the rules (including here the Protocol)
to give effect to the Overriding Objective as required by CPR rule 1.2. Adopting the
same approach as Master Thornett in relation to Part 36, I find that there is nothing in the
Protocol which is inconsistent with the doctrine of mistake applying and, further, its
application gives effect to the Overriding Objective.


The application of the doctrine to this case is entirely straightforward. As I said at the
outset, it would have been obvious to any legal representative receiving the Claimant’s
S2SP on 25 June 2020 that an error had been made. This is squarely within the scope of
the doctrine of unilateral mistake. There is therefore no binding settlement and the matter
must be the subject of an assessment using the stage 3 procedure.