Thompson v Reeve (20 March 2017, QBD)
The High Court has allowed a claimant to withdraw a settlement offer despite of the fact that the withdrawal was made by email and that the defendants had not indicated in writing that they were willing to accept service by email.
The claim was brought for damages following a road traffic accident and was valued at £347,000.00. In August 2016 the Claimant made a Part 36 Offer to settle the claim in the sum of £340,000.00. This offer was subsequently withdrawn via email on the 28th February 2017 following the change in the discount rate for personal injury compensation, announced on the 27th February 2017. On the 2nd March 2017, the Defendants accepted the Part 36 offer by fax and by DX (again it appears that the acceptance was motivated by the change in the discount rate). Following a CMC, the Claimant made an application for a declaration that the Claimant’s offer was deemed to have been withdrawn on 28th February 2017.
The Claimant accepted that service of the notice of withdrawal by email was not in accordance with CPR 6.20 (service rules) because the Defendants had not indicated in writing that they were willing to accept service by email. However, the Claimant submits that CPR 3.10 may be applied so that service of the notice of withdrawal can be treated as valid.
The Defendants argued that, since part 36 is a self-contained code, CPR 3.10 cannot be used in the context of Part 36.
The Defendants argument was rejected by Master Yoxall, who held that although Part 36 is a self-contained code, “it is not completely freestanding” and, indeed, the Defendants themselves relied on an outside rule, CPR 6.20, to submit that service was irregular.
The Master held that CPR 3.10 has a wide effect and could be invoked here, where the withdrawal notice was actually received and gave the Defendants all the necessary information.
The Master stated that “In the present case, the Claimant gave notice in writing of the withdrawal. It is not disputed that the notice was actually received. The notice provided the Defendants with all the information necessary. As stated above, it is the method of service which is defective. In my judgment r.3.10 can be invoked to cure the defect”.
Thereafter Master Yoxall concluded: “The court has jurisdiction to make an order under r.3.10. The final question is whether or not the court should exercise its discretion to do so. In the circumstances, I consider that it would be just to make an order that pursuant to r.3.10 the date of service of the Claimant’s notice of withdrawal shall be treated as 28th February 2017; i.e., that the error of serving by email is remedied. In my view, it would not be just or consistent with the overriding objective that a technical breach of the rules should impede the proper assessment of damages in this case.”
This shows willingness by the Court to exercise its discretion of rectifying procedural errors in order to prevent any perceived unfairness should a party attempt to obtain a tactical advantage.
This ruling deals with withdrawal of a Part 36 offer. However, there is no reason why it would not also cover the making of a Part 36 offer. Indeed we have recently seen costs cases where opponents (claiming not to accept service by e-mail) have been overruled by the Court (and by the use of this case and CPR 3.10) and ordered to pay their Part 36.17 (4) liabilities.
Guy Platt-Higgins