The doctrine of mistake doesn’t apply in the process-driven portal.

Back in October 2013, Lord Neuberger referred to ‘quick and dirty’ justice sometimes being more appropriate than the ‘full majesty’ of a traditional trial.

In the personal injury sphere, the road traffic accident protocol – for claims up to £25,000 – is certainly an example of justice being a lot quicker and cheaper than the traditional route. But should the normal principles of justice still apply?

Apparently not. A case heard in Birkenhead County Court this autumn (Draper v Newport) covered a situation in which a claimant fee-earner had accidentally pressed the wrong button when dealing with a claim – clicking ‘yes’ at least twice, and inadvertently accepting the defendant’s offer when she had not intended to do so.

She realised her mistake almost straight away, and wrote to the defendants within half an hour to let them know that the acceptance had been an error. But unfortunately things were not resolved through agreement, and instead the matter ended up in Birkenhead County Court, with District Judge Baker tasked with deciding whether the common law doctrine of mistake could be applied to the proceedings under the protocol.

The judge was very clear that in this case, it could not.  

District Judge Baker was worried that if he allowed the mistake doctrine to be applied to claims going through the portal, he would be cracking open a festering can of worms.

He said: ‘There is a real risk that many statements will be provided on behalf of errant claimants and indeed defendants who complain of having pressed button B instead of button A, and who is to gainsay that that was not a genuine mistake?

‘Who is to gainsay what is the appropriate length of time for them to notify the other side of what the mistake was? Is it when they get a complaint from a client an hour later, two hours later, a day later, where the supervisor, as there seem to be in these firms these days, does not agree with the view taken by the operator and then puts together some form of argument along the lines of mistake rather than a failure to properly appreciate what the issues properly were between the parties?

‘So I am very very reluctant to open up this particular and detailed scheme of rules to exposure to common law doctrines unless it is absolutely necessary, and in this case I do not find that it is because in this case, having regard to the overriding objective and notwithstanding the difficulties that [the fee-earner] found herself in on behalf of her client, the solution to that was, quite frankly, to be simply more careful in the way that she operated the system, and for one to extend and to allow the operation of the law of mistake into this self-contained rules-based scheme, notwithstanding that it is not specifically provided against so far as the claimant is concerned, would seem to me to be a step too far and one which is not appropriate having regard to the overriding objective and having regard to the scheme and the way that it should operate.

‘It would have a real risk of undermining the certainty, speed and cost which are all elements which this scheme is designed to deal with, and to deal with in a way which ensures the parties have their cases dealt with justly and at proportionate cost.’

So the scheme has to balance the need for fairness with the need for speed and efficiency; and the judge’s decision is not altogether surprising.

But it highlights how important it is for firms that have been forced to adopt a more processed approach to ensure that their fee-earners have a proper understanding of the system they are operating. Mistakes will be punished, and in a high-volume environment, those mistakes may have been repeated many times over.

Rachel Rothwell is editor of Litigation Funding