REVIEW OF RECENT APPELLATE DECISIONS WHICH ARE RELEVANT TO CLAIM HANDLING

Part 36 Offers

The offer made pursuant to Part 36 of the CPR is governed by the law of contract. Thus any issued between the parties in relation to a Part 36 Offer has to be governed by it. In a recent case of Scammell & Others v Dicker the Court of Appeal considered whether a Part 36 Offer can be withdrawn at any time before acceptance and whether it can be withdrawn within the 21 day period. The Court of Appeal held that a Part 36 Offer can be withdrawn at any time before acceptance even within the 21 day period. The Court of Appeal reversed the decision made by Judge Thompson QC in Poole County Court.

The implication of this ruling for Part 36 Offers made by your department is that any of these offers can be withdrawn by you before the 21 day period expires. It was argued in Scammell that once an offer is made it must run for the 21 day period and cannot be withdrawn. This was rejected by the Court of Appeal. The law of contract provides that any offer made can be withdrawn at any time before the offer is accepted. It therefore follows that if ever you are in a situation where having made a Part 36 Offer you wish to withdraw it you could do so without any regard for the 21 day period. In so far as offers outside the 21 day period are concerned they can always be withdrawn and can in fact only be accepted by the claimant with the penalties imposed by the rules. A valid contract between the parties is deemed to take place once an offer made is accepted.

Service of the Summons

There are many occasions when insurers nominate solicitors to accept service of the proceedings. If the claimant’s solicitors failed to serve the proceedings on the nominated solicitors then an insurer is entitled to reject service of the proceedings on them.

In Nanglegan v Royal Free Hampstead NHS Trust the claimant’s solicitors served proceedings on the defendant/insured when in fact the defendant/insured’s insurance company had nominated a firm of solicitors for acceptance of the service. Those solicitors had notified the claimant’s solicitors that they had the authority to accept service in the proceedings. Notwithstanding this the claimant’s solicitors erroneously served the proceedings on the defendant. Both the limitation period and the period of 4 months time of the summons had expired when the matter of service was raised by the defendant’s solicitors. They were successful in persuading the Court of Appeal. Posting the
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claim form was not a valid service on the defendant when in fact the solicitors were nominated.

There are of course occasions when situations like this may occur with claims departments and it is worth bearing this in mind particularly where limitation and life of the summons are on the verge of expiring.

Single Joint Expert

A recent decision by the Chancery Division in the matter of Cosgrove and another v Patterson and another is an important indication as to the nomination of a single joint expert. There are many times when you have appointed a single joint expert but then have considered using an expert of your own. The claimant representatives often come back with an argument that having already agreed a single joint expert you have lost your right to your own expert. A similar situation arose in the above case. The claimants’ solicitors objected to the defendants’ right to call their own expert where a single joint expert had been appointed pursuant to Rule 35.7 of the Civil Procedure Rules. His Lordship allowed the defendants’ application in calling their own expert notwithstanding that a single joint expert had been appointed. His Lordship considered guidance given by Lord Woolf, Master of the Rolls in Daniel v Walker. We set our below non- exhaustive list of factors which are relevant in allowing defendants to call their own expert in this situation. They are:-

 The nature of the dispute

 number of disputes on which the expert evidence was relevant

 the reasons for needing another expert report

 the amount of money at stake

 the effect of allowing a further expert witness on a conduct of the trial

 the delay that handling or calling for their expert would cause

 any other special features

 the overall justice to the parties in the context of the litigation.

In nearly every case that you would be involved in the relevant factor would be the amount of money at stake and most importantly the overall justice to the parties in the context of the litigation. I believe that we could always successfully argue these two factors particularly where the claim is in excess of £15,000.

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It is also worth remembering that the pre-action protocol and the use of a single joint expert is principally designed for fast-track claims. Where on the information supplied to you the claim is valued in excess of £15,000 and you should always consider using your own expert. Where you have agreed to use a single joint expert you should utilise the procedures available in the protocol and send out separate instructions to that expert on matters of concern to the defendant.