A High Court judge has suggested it would be ‘unjust’ for a defendant to be held to a six-year-old Part 36 offer accepted hours before the claimant died.
Ms Clare Ambrose, sitting as a deputy high court judge in Wormald v Ahmed, said the case raised novel questions about Part 36 after the £2m offer from 2014 was accepted on behalf of the claimant’s litigation friend.
The court heard that the claimant, Lyndonne Wormald, had suffered a serious brain injury from a road traffic accident in 2009. In 2014, the defendant’s solicitors made a Part 36 offer in respect of the whole claim, which was not withdrawn at any stage, with a trial on quantum listed for October this year.
In September last year, Wormald’s solicitors were informed he was in hospital having choked and suffered a cardiac episode and serious consideration was given to accepting the £2m offer. On the morning of 18 September the claimant’s solicitors sent notice of acceptance, to which the defendant’s solicitors replied asking what Wormald's condition was. Wormald died later that day.
The court heard that a week after the claimant’s death, the defendant’s solicitors sent an email purporting to withdraw the Part 36 offer. It was submitted that the offer would lead to a ‘significant windfall’ for Wormald’s estate and was based on the future costs of care which would not now be incurred.
At a hearing last month, the claimant’s solicitors argued that Part 36 rules were carefully drafted to create certainty and that the defendant was not entitled to withdraw the 2014 offer. It was ‘happenstance’ that the offer was accepted on the same day as Wormald died, and the court was urged to conclude that the Part 36 was validly accepted.
The defendant’s solicitors submitted that acceptance was not binding until approved by the court, without which either party was free to resile from the compromise. They argued that acceptance of the offer was ‘hasty and opportunistic’.
Ambrose said the claimant’s solicitors knew of the significant change in Wormald’s prognosis in the days before he died, and knew this would affect the value of his case – although she rejected any suggestion that the acceptance was opportunistic. But the judge noted that the defendant was not notified of the change in Wormald’s condition until after the offer was accepted, and she agreed with the defendant that the decision was ‘made under pressure and somewhat hastily’.
Ambrose ruled that the court should not approve a settlement made under these circumstances, but reserved final determination until the claimant’s solicitors provided further information and fully answered the defendant’s requests for medical records.
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