A more lenient take on mistake

To err is human. But that is small comfort if you have the misfortune to have made a typo when inputting a settlement offer in the Ministry of Justice’s portal for low-value personal injury claims. Can such errors be rectified in the usual way, through the common law doctrine of mistake? A string of cases coming out of the courts has answered with a thumping, merciless ‘no’.

The logic, as spelled out by District Judge Baker in Draper v Newport in Birkenhead County Court in September 2014, is that the portal operates under its own set of rules. To ‘import’ the doctrine of unilateral mistake would risk undermining the ‘certainty, speed and cost’ of the regime. It might also spark a surge in satellite litigation, he warned; though his robust ruling has done nothing to stop a glut of other cases being brought on the same issue since.

In May, for example, Truro County Court heard a case (Mahoney v Royal Mail) that would make any low-value PI lawyer wince – and perhaps insist that all fee-earners in the building check their keyboards for sticky keys. The amount entered as a Part 36 offer inadvertently lacked the final zero – meaning that the defendants were able to accept an offer of £550, instead of £5,500. A similarly uncompromising approach was adopted in June in the consolidated cases of Lis v Rogers, where a £10,000 claim was mistakenly settled for £1,000; and Zommers v Litham, where an offer of £24,000 was wrongly recorded as £13,000. Both were due to software or input errors. Again, there was no mercy from the courts.

But now another case, Harris v Browne, has bucked the trend. HHJ Davey, a circuit judge in Bradford County Court, adopted an entirely different approach that will come as a relief to twitchy-fingered lawyers working with the portal software. In Harris, the wrong figures had once again been entered, with the claimant firm somehow making an offer of £6,115, instead of £8,395. But crucially, the defendants had received an email from the claimants with a breakdown of the offer. That meant they were fully aware that the sum submitted via the portal was the wrong amount.

At first instance, District Judge Hickinbottom followed the same line as the previous cases on this topic, finding that the portal and its protocol are a ‘stand alone arrangement’ that is ‘rough and ready’, and designed for speedy justice. He considered that applying common law principles such as the doctrine of mistake would cause uncertainty, delay and satellite litigation.

HHJ Davey said that while the portal rules will involve ‘an element of rough justice… there must eventually come a point where the justice is so rough that it becomes injustice – and that point, in my view, has been reached on the unique facts of this particular case

But on appeal, Judge Davey took a more rounded approach. While he agreed with Hickinbottom’s finding that the low-value claims protocol was indeed its own self-contained code, he then turned to the overriding objective – which requires cases to be dealt with ‘justly’. The fact that the defendants knew that the offer figure was a mistake meant that the overriding objective had been triggered. Refreshingly, the judge said that while the portal rules will involve ‘an element of rough justice… there must eventually come a point where the justice is so rough that it becomes injustice – and that point, in my view, has been reached on the unique facts of this particular case’.

Davey allowed the claimant’s appeal and the Court of Appeal has now refused permission to appeal his decision. The appeal court said there was no chance of a successful challenge to the way Davey had applied the overriding objective, which had avoided ‘what would obviously be a monstrous injustice.’

In giving its reasons for refusing permission to appeal, the Court of Appeal said the case ‘raises no important point of law or practice’ and ‘turned entirely upon the very particular facts’. But given the frequency with which mistakes are made in the portal (whether due to a glitch in the software or human error, and whether by claimants or defendants) and how often an opponent will be fully aware of that mistake, Harris looks set to become a very commonly cited case. It is a ruling that should be welcomed. And not just by nervous lawyers operating the low-value claims portal, but by anyone who thinks that our justice system should never sink below a minimum level of basic fairness – even in the rough and ready world of low-value personal injury claims.

Rachel Rothwell is editor of Gazette sister magazine Litigation Funding, the essential guide to finance and costs (www.lawgazette.co.uk/litigation-funding). For subscription details, tel: 020 8049 3890