Joseph Paul Huntley (also known as Joseph Paul Hopkins) (a Protected Party by His Litigation Friend, Alison Jane McClure) v Paul Simmonds
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE UNDERHILL,Mr Justice Underhill |
| Judgment Date | 05 March 2009 |
| Neutral Citation | [2009] EWHC 406 (QB) |
| Date | 05 March 2009 |
| Court | Queen's Bench Division |
[2009] EWHC 406 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mr Justice Underhill
Mr David Wilby QC and Mr Paul Dean (instructed by Blake Lapthorn) for the Claimant
Mr Ronald Walker QC and Mr Nigel Lewers (instructed by Irwin Mitchell) for the Defendant
Hearing dates: 13 February 2009
JUDGMENT ON COSTS
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Underhill:
I circulated a draft judgment in this case on 4 February 2009. The draft required the parties to do some arithmetic before the final value of the award could be calculated; and as it transpired there were two aspects which required clarification. There was accordingly a further short hearing on 13 February. It was however clear that, whatever the final figure turned out to be, the Claimant had failed to obtain a more advantageous award than had been offered by the Defendant some three or four weeks before the start of the assessment of damages hearing. On that basis Mr Walker asked at the hearing on 13 February for an order under CPR 36.14(2) that the Defendant have his costs from 21 days thereafter. That application was opposed by Mr Wilby. Because one aspect of the facts required clarification I reserved my decision and allowed the parties to put in further written submissions. This is my judgment on the costs issue.
The essential facts can be summarised as follows:
(1) On 10 October 2008 Blake Lapthorn ('BL') for the Claimant made what purported to be a Part 36 offer (subject only to the fact that any settlement would require the approval of the Court). The offer was to accept a lump sum of £1,000,000 net of interim payments and a PPO in the sum of £1,000 p.a.
(2) On 13 October Irwin Mitchell ('IM') for the Defendant made an offer, purportedly pursuant to Part 36, of a lump sum of £3,600,000.
(3) On 15 October BL offered to accept a somewhat reduced offer.
(4) On 16 October IM made a counter-offer in the following terms:
“We acknowledge receipt of your letter dated 15 th October, received via e-mail at 18.41 yesterday.
The offer set out in that letter is rejected.
In a final effort to settle your client's claim, our client is prepared to offer your client a lump sum of £850,000 net of interim payments and CRU together with a periodical payment of £60,000 per annum indexed to ASHE 6115. If the offer is accepted, our clients will pay your costs of the action to be the subject of a detailed assessment in default of agreement.
This offer is made pursuant to the provisions of Part 36 CPR and will remain open for 21 days from the date upon which you are deemed to have received this letter. Thereafter, the offer cannot be accepted without the Court's permission or the agreement of the parties on costs.
Please note that if this offer is not accepted (notwithstanding the offer in relation to the indexation of the PPO) we reserve the right to seek an Order that any PPO be indexed to RPI rather than ASHE 6115, on the grounds that all the evidence on the point supports the view that your client will not engage with professional carers and is highly likely to continue to employ “support workers” from his friends and family.”
The capitalised value of that offer is £2,926,000.
(5) On 17 October BL replied as follows:
“We refer to your Part 36 Offer dated the 16 th October 2008.
We would be grateful if you could please clarify the level of annual periodic payments that the Defendant is now proposing.
The Defence have now offered £60,000 per annum. This appears to be considerably less than previous offers and indeed overall, approximately £675,000 less in total. Please confirm that it is the Defendant's intention to offer periodic payments at £60,000 per annum.”
The query raised by that letter appears to reflect a surprise that, in capital terms, the value of IM's offer was less than that of the offer made on 13 October. But it is in fact unsurprising that a defendant who has to take the risks of indexation of long-term payments is not prepared to make as generous an offer on a basis which includes a PPO.
(6) That offer was not accepted. On 10 November, i.e. on the first day of the hearing, BL made clear that they would recommend acceptance of IM's first offer if it were to include a substantial PPO element; but the Defendant was not interested.
(7) The capital value of my award has not, as I have said, been definitively calculated; but it was accepted before me that it was less than £2,926,000...
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