Background
The Claimant, Mr Ryan Fitton, was involved in a road traffic accident with the Defendant's insured and submitted a claims notification form via his solicitors on 20 June 2016. In response the Defendant accepted liability.
The Claimant's solicitors submitted a stage 2 settlement pack on behalf of the Claimant on 17 February 2017. It documented an initial offer of £4,125 for pain, suffering and loss of amenity, £670 for physiotherapy and £30 for miscellaneous expenses, making a total offer of £4,825.
On 2 March 2017, the Defendant sent a response indicating they did not agree the physiotherapy charges, would not consider making any offer for miscellaneous expenses and allowed £2,500 for pain, suffering and loss of amenity. The total offer was £2,500.
In response, the Claimant amended their offer to settle by reducing the physiotherapy claim to nil (because the Defendant was providing physiotherapy treatment), the claim for miscellaneous expenses to nil and the claim for pain, suffering and loss of amenity to £3,900. A response was sent but the Claimant's representatives did not amend the gross settlement box despite the fact there were two prompts built into the system to confirm the response should be sent.
The Defendant having received the reply on 10 April 2017, noted that the gross settlement offer was the same as the Defendant's offer and therefore ticked the 'yes' box indicating that agreement had been reached in the gross sum of £2,500 and that that was the agreed settlement figure.
Thereafter, the Claimant's solicitors issued Part 8 proceedings seeking to have the level of damages assessed by the court by way of a stage 3 oral hearing as in their opinion, there was no compromise reached.
The matter of whether there was a compromise was dealt with as a preliminary issue and came before Deputy District Judge Nasser sitting at the St Helens County Court who concluded that:
"It cannot be the case that there is a compromise in this particular case where the Defendant has effectively accepted its own offer, inferring it had been made by the Claimant when it was clear that it has not and the Claimant has not ticked the box."
This was appealed and the matter was heard on 5 November 2018.
Findings
His Honour Judge Parker heard submissions made by the parties and found that the matter was concluded at stage 2 of the protocol for low value personal injury claims in that the Claimant's representatives' actions had led to failure to take heed of prompts with regard to making of the offer.
At the hearing the Claimant advanced the following points:
- The Defendant was estopped from raising the point that a compromise had been reached between the parties during stage 2.
- Whilst the MOJ portal claims are subject to certain rules as set out in CPR PD8B these are not a set of rules in a vacuum which are not governed by common law principles such as compromise and law of mistake.
In giving judgment, His Honour Judge Parker found the Defendant was not bound by the law of estoppel as it was clear from correspondence that each party maintained that the case had been compromised but at different figures.
In relation to the second point, the Judge gave very useful guidance to parties in relation to the portal rules and reiterated that the purpose of introducing the protocol was to streamline and simplify low value claims and the self-contained code enabled the parties to negotiate the settlement. Whilst the process might on occasion provide "rough justice", it is generally a proportionate and cost effective way of achieving settlement and the overall benefits of the system outweigh any negatives.
Further, he found that;
"there is very good reason for the protocol to be self-contained, to the exclusion of normal principles of contract and, for example, the doctrine of mistake – because of the risk that the objective sought by the protocol is thwarted by disproportionate satellite litigation. The protocol has been designed with the deliberate intention to avoid low value personal injury claims arising out of road traffic accidents, spiralling into unnecessary and costly litigation. It is a self-contained code and its operation is to the exclusion of normal principles of contract in a way that is similar to the operation of Part 36".
He went on to state that finding otherwise risked undermining the principles and intentions of the protocol.
Accordingly the judge agreed with the Defendant that a compromise had been reached under stage 2, dismissed the Claimant's claim and awarded costs of the Part 8 proceedings and appeal.
Comment
This case illustrates the importance of claimants correctly following the procedure when dealing with the MOJ portal for low value personal injury claims which will extend to claims being handled under the EL/PL portal.
The judgment reiterates earlier cases regarding the doctrine of mistake not applying to the portal and that the portal rules are very much a self-contained code.
It is therefore clear those using the portal must be very careful to follow the rules and check the offer box prior to submitting an offer or response. The parties need not look behind the offer at the individual heads of loss.
Contact
For further information please contact Richard Welsh on 0113 261 6022 or at richard.welsh@dwf.law
