Partial settlement offer made on behalf of minor claimant before proceedings commenced accepted by defendant - defendant withdrawing offer once proceedings commenced - offer invalid and not binding absent approval by court

Drinkall v Whitwood: CA (Lords Justice Simon Brown, Jonathan Parker and Thomas): 6 November 2003

Before proceedings were commenced following a serious road accident, the claimant, by her mother and litigation friend, offered to settle the issue of liability 80:20 in her favour.

The defendant accepted the offer but the court's approval was not obtained.

The defendant later withdrew acceptance once proceedings had been commenced.

The judge held that the offer was valid and binding.

The defendant appealed.

Peter Burns (instructed by James Chapman & Co, Manchester) for the claimant; Adam Korn (instructed by Stamp Jackson & Procter, Hull) for the defendant.

Held, allowing the appeal, that, on a true construction of CPR rule 21.10 and the authority of Dietz v Lennig Chemicals Ltd [1969] 1 AC 170, acceptance of a settlement offer under CPR part 36 made on behalf of a minor without the approval of the court before proceedings were commenced did not create a valid and binding agreement; that that was so whether the offer related to a specific issue or the whole claim, and so the defendant was entitled to renege on the agreement; that where a partial settlement was reached before proceedings were issued those acting for a child claimant might think it prudent to issue proceedings to obtain the court's approval, lest the defendant otherwise sought to repudiate it; and that once a child claimant reached adulthood a settlement agreement which until then had been invalid for want of approval by the court could, unless and until repudiated, be treated as an offer and accepted by the other party.

(WLR)

Trial by jury - selection of jury on discriminatory basis - all-male jury infringing woman's right to fair trial

Rojas v Berllaque (Attorney-General for Gibraltar intervening): PC (Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough, Lord Millett, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe): 10 November 2003

The plaintiff brought a claim for false imprisonment, for which she was entitled to a jury trial.

Under section 19(1) of the Gibraltar Supreme Court Ordinance men aged 18 to 65 were liable to compulsory jury service whereas under section 19(2) women of the same age were merely eligible if they volunteered, and few did.

On the plaintiff's application for a jury selected from a panel including men and women on an equal basis, the judge ruled that, to comply with the right to a fair trial by an impartial tribunal under section 8(8) of the Constitution of Gibraltar, section 19(1) should be read applying equally to men and women and section 19(2) omitted.

On an appeal by the Attorney-General, intervening, the Court of Appeal of Gibraltar by a majority reversed that ruling.

The plaintiff appealed to the Privy Council.

David Pannick QC, David Hughes and N Tr Critelli (instructed by Lovells) for the plaintiff; Matthias Kelly QC (instructed by RadcliffesLeBrasseur) for the defendant; Michael Beloff QC, Javan Herberg, and Albert Trinidad, Senior Crown Counsel, Gibraltar (instructed by Charles Russell) for the Attorney-General.

Held, allowing the appeal (Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry dissenting), that a non-discriminatory method of compiling a jury list was an essential ingredient of a fair trial by jury; that by discriminating between men and women regarding liability for jury service, section 19 of the ordinance violated section 8(8) of the constitution; and that, accordingly, section 19 should be modified under the constitution's transitional provisions to conform with section 8(8).

(WLR)