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Part 36 – late acceptance

If a Part 36 offer is accepted out of time (ie outside the 21 day period) in a low value protocol case, then what are the costs consequences? In particular, does late acceptance mean a liability to pay standard (or indemnity) costs – rather than fixed costs – from the 21 day period through to the date of acceptance? The CA has confirmed that it does not; fixed costs still apply.

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Whiplash – bogus claims

Given the fuss about exaggerated whiplash claims, it is worth quoting the words of Martin J which he used in two recent appeals. In the first, the claimant had disclosed only one previous RTA (he had been involved in five), with Martin J therefore deciding this was ‘fundamental dishonesty’ (and so the claim was dismissed). In the second, the claimant failed to attend a series of physiotherapy sessions (which led to the claim being dismissed for a ’failure to prove’):

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Fundamental dishonesty – exaggeration

The claimant was injured in an RTA, with the defendant admitting liability. The claimant alleged that he suffered from PTSD, and thus his loss of earnings claim was £850,000. The defendants said he merely suffered minor injuries which were resolved within six months. They therefore argued that he had ‘exaggerated’ his claim, and was therefore ‘fundamentally dishonest’ (so the claim should be struck out).

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Damages – future accommodation

A claim for ‘future accommodation’ will typically be for the cost of alternative accommodation the claimant needs because of the injury suffered (eg specially modified accommodation). For the past three decades, awards for future accommodation have been calculated according to the methods set down in Roberts v Johnstone [1989], which were designed to compensate claimants for a notional loss of investment income on the capital used in buying a suitable property. However, as we noted in our June 2018 issue (p27) the logic of that approach has been under increasing attack in recent years. In particular, the arrival of the negative discount rate (in 2017) has simply made Roberts v Johnstone unworkable.

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Part 36 – reminders

A reminder of some of the pitfalls of Part 36 offers:

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Vicarious liability – independent contractor

Can an employer be liable for the acts of an independent contractor? That was the question posed in a series of claims against Barclays, with Barclays’ employees alleging that they had been sexually assaulted by a doctor who was carrying out medical examinations on the bank’s job applicants. The doctor had since died (before criminal convictions could be secured) and so the employees argued that Barclays was vicariously liable.

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Limitation period – ‘fear’ claim?

What is the limitation period for bringing a claim based upon ‘fear’?

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Standard costs – fixed or assessed?

The claimant and defendant settled a PI case by consent order with costs ‘on a standard basis, to be assessed if not agreed’.

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Exiting the Portal – unreasonable

But, what about costs if the claimant unreasonably exits the Portal? For instance, suppose there is an unreasonable exit; the claimant starts Part 7 proceedings; and then he accepts a Part 36 offer.

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Exiting the Portal – reasonable

Insurers should be very careful about making allegations (for instance, at Stage 2 of the EL/PL Protocol), especially if they could be interpreted as allegations of ‘dishonesty’.

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