The High Court has allowed a claimant to withdraw a settlement offer made before the discount rate applied to PI payouts was changed – potentially enabling her to secure greater damages.
Master Yoxall said the law allowed for the claimant to make an ‘error of procedure’ and change her offer. The case is believed to be the first procedural dispute related to the hotly debated change in the rate announced last month.
The claimant in Thompson v Reeve, who had been injured in a 2008 road traffic accident and subsequent negligent treatment, had sought to cancel her Part 36 offer to settle for £340,000, made in August 2016.
Her solicitors sent an email withdrawing that offer on 28 February this year – one day after lord chancellor Liz Truss opted to set a negative discount rate and so increase lump-sum compensation payments for personal injury victims.
Master Yoxall, sitting in the Queen’s Bench Division, said it was ‘no secret’ this withdrawal was made to capitalise on Truss’s announcement. The defendants’ representatives protested that they had not accepted in writing they were willing to accept an emailed withdrawal.
The defence teams then informed the court they had accepted the original Part 36 offer by fax on 2 March – again prompted by the discount rate and the fact the new rate was not coming into force until 20 March.
The claimant accepted that service of the notice of the withdrawal was not in accordance with Civil Procedure Rule 6.20, but her lawyers cited CPR 3.10, giving the court general power to rectify an ‘error of procedure’ where the error did not invalidate any step taken in proceedings.
Yoxall rejected the defendants’ case that Part 36 was a ‘self-contained code’ which restricted the use of CPR 3.10. He said it was not in dispute the notice was actually received and the defendants were provided with all information necessary.
The judge added: ‘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.’
For the full judgment, follow this link.