Thompson v Reeve (20 march 2017) (unreported)

Claimant cancels Part 36 offer to take advantage of the new discount rate

The claimant brought an action for damages following a road traffic accident and pleaded the claim at £347,000.00.

In August 2016 the claimant made a Part 36 offer of £340,000 and the case continued.

On 28th February 2017 (a day after the new discount rate was announced) the claimant’s solicitors sent an email to the defendant’s solicitors withdrawing the offer.

By way of a letter dated 2 March 2017 the defendants accepted the claimant’s offer.

The claimant made an application for permission to withdraw the Part 36 offer, and a declaration that the offer was deemed to have been withdrawn on 28 February 2017.

Service of documents by email can only take place where the receiving party as indicated it is willing to accept service by email (Practice Direction 6A, para 4.1(1)), the defendant had not given any such indication. The claimant conceded the notice of withdrawal was not good service but contended CPR 3.10 could be applied so that the withdrawal could be treated as valid.

CPR 3.10 is the general power of the court to rectify matters where there has been an error of procedure.

The defendant argued CPR 36 is a self-contained code and that CPR 3.10 could not be used in this context.

HELD: The Master held that CPR 3.10 has a wide affect, could be used in this context and applied to CPR 36. In this case the claimant had given notice in writing and it was accepted the defendant had received the email. It was the method of service which was defective and CPR 3.10 was there to cure this defect. The Master held therefore, that it was appropriate to make an order under CPR 3.10. He stated:

“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 the case”

Caren Sharp v Leeds City Council [2017] ewca civ 33

CA (Civ Div) (Jackson LJ, Briggs LJ, Irwin LJ)

Where a claim is potentially subject to the fixed costs regime, will an application for Pre Action Disclosure attract fixed costs or costs to be assessed if the claim does not continue under the fixed cots regime?

In February 2014 the appellant tripped and fell on allegedly defective paving maintained by the respondent local authority. The claimant’s solicitors had issued a Claim Notification Form (“CNF”) through the EL/PL portal. The claim fell out of the portal, the precise reason appeared to be a matter for dispute but it was thought to be the defendant had not sent in the CNF Response within the prescribed time. The CNF was then treated as a letter of claim and fell within the Personal Injury Protocol.

The defendant failed to give pre action disclosure and the claimant made a PAD (Pre Action Disclosure) application. By the time the PAD came before the district judge the defendant had given disclosure. Nonetheless the district judge awarded costs of the PAD to the claimant.

The district judge summarily assessed costs in the appellant's favour at £1,250. The respondent appealed and a judge reduced the costs £300 on the basis that they were governed by the fixed costs regime applicable to the EL/PL protocol.

Although the amount in dispute was a modest sum, the issue as to whether the fixed costs regime applied had important practical consequences in terms of the cost/benefit of making applications for pre-action disclosure.

HELD: The fixed costs regime applied to the costs of an application for pre-action disclosure. Pre-action protocols provided for the commencement of claims by means of an online portal. From the moment of entry into the portal, recovery of costs for pursuing or defending the claim was intended to be limited to fixed rates so as to ensure proportionality in the conduct of small or relatively modest claims.

The fixed costs regime was subject only to a very small category of clearly stated exceptions. To recognise other, implied, exceptions would be destructive of the regime's clear purpose. The clear wording of CPR r.45.29A(1) and r.45.29D supported that conclusion that the fixed costs regime applied to cases begun under the EL/PL protocol even though such cases might never reach the stage of court proceedings being issued.

There was real force in the appellant's submission that limiting costs to fixed costs would deprive pre-action disclosure applications of their value as a spur to compliance with protocol disclosure obligations. The fixed costs would refund only a small part of the likely outlay incurred. However, the answer was not to extend the exceptions to the fixed costs regime, but to promote the availability of an application.

To make pre-action disclosure applications subject to assessed costs would risk giving rise to an undesirable form of satellite litigation involving disproportionate expense.

Appeal dismissed.