Lorraine Heather O'Grady (widow and executrix of the Estate of Martin James O'Brien v B15 Group Ltd (formerly Brighthouse Group Ltd)
| Jurisdiction | England & Wales |
| Judge | Master Thornett |
| Judgment Date | 17 January 2022 |
| Neutral Citation | [2022] EWHC 67 (QB) |
| Docket Number | Claim No. QB-2021-000496 |
| Year | 2022 |
| Court | Queen's Bench Division |
[2022] EWHC 67 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Master Thornett
Claim No. QB-2021-000496
Mr Richard Wilkinson (instructed by Slater and Gordon) for the Claimant
Mr David Brounger (instructed by Kennedys Law LLP) for the Defendant
Hearing date: 9 December 2021
On 15 February 2018, the Claimant's husband, Mr Martin O'Brien, was killed when a lorry, driven by an employee of the Defendant, attempted to execute a U-turn on a dual carriageway in contravention of “no U-turn” signs. The Defendant's driver was convicted on a guilty plea of causing death by careless driving. The Defendant was notified of the civil claim by Letter of Claim dated 25 March 2018 sent on behalf of the “Estate and dependants of Mr Martin O'Brien (deceased).”
The following relevant events then occurred:
2.1 20 April 2020: the Defendant's solicitors put forward a Part 36 offer whereby they offered to apportion liability on the basis of a 60/40 split in favour of the Claimant. At that stage the Defendant had not made any formal admission in relation to primary liability. The Claimant did not accept this offer, but neither was it withdrawn;
2.2 10 February 2021: the Defendant formally conceded primary liability but made clear that contributory negligence remained live;
2.3 11 February 2021: Claim Form issued by the Claimant in respect of claims under the “ Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976”;
2.4 23 February 2021: the Claimant's solicitor put forward a Part 36 on the issue of liability. The offer (literally) read:-
“The Claimant offers to resolve the issue of liability of on 80/20 basis. For the avoidance of doubt if the Defendant accepts this offer it will only be required to pay 20 & of the Claimant's damages.”
2.5 24 February 2021: Having received the Claimant's offer by e-mail at 15.51 on 23 February, the Defendant's solicitor accepted it by e-mail at 10.02 on 24 February;
2.6 24 February 2021: The Claimant's replied by e-mail at 10.12 to make clear that the offer that he intended to make on behalf of the Claimant was 80/20 in the Claimant's favour;
2.7 8 June 2021: the Claim Form was served along with a Schedule of Loss claiming damages of £397,516.73, mostly in relation to claims for loss of dependency by the Claimant's wife, his stepsons and his granddaughter, Lottie. Lottie was born on 22 November 2017 and so is now aged four.
The Claimant issued an Application on 2 March 2021 for permission to withdraw her offer or to change its terms under CPR 36.10(2)(b). Witness statements were exchanged and, in consequence, the Claimant felt obliged to issue a subsequent Application dated 22 October 2021 for permission to call the Defendant's solicitor and cross-examine him on the contents of his witness statement. In particular, whether the Defendant's solicitor knew or suspected that the Claimant's offer had been made in error by her solicitors.
I listed a preliminary hearing for 3 November 2021 specifically to decide whether the Defendant's solicitor should be called to be cross-examined in these circumstances. Very shortly before the hearing, but very helpfully in terms of narrowing the issues, the Defendant conceded that the mistake relied upon by the Claimant's solicitor in formulating the offer was of a kind that would render any agreement void if the court were to accept that the common law doctrine of mistake is relevant when considering Part 36 offers. The hearing on 3 November briefly proceeded instead to explore the procedural issues as remained for consideration. Also helpfully and pragmatically, counsel agreed that any tensions between them on the correct interpretation and application of r.36.10(2)(b) on these facts could be resolved by agreeing to treat the Application as seeking a declaration that no binding agreement had been reached on the issue of liability in the claim and this did not necessitate formal amendment of the Claimant's first (and so now as only relevant) Application.
The recital to the Consent Order following that hearing recorded the agreement that “the Claimant's solicitor, in making the offer to apportion liability at 80/20 in favour of the Defendant, rather than 80/20 in favour of the Claimant as had been intended, made a mistake of a kind which in law would render the agreement void if the court finds that common law principles (specifically in relation to the doctrine of mistake) apply to P36 offers”.
The Claimant's case, carefully developed and with reference to numerous authorities, essentially is that there is no reason, either by reference to Part 36 itself or case law, why a mistake in the formulation of a Part 36 Offer as known to be a mistake by the recipient, should not prevent that offer from constituting an effective and binding Part 36 offer. Mr Wilkinson on behalf of the Claimant emphasises the significance of the Defendant's concession in this regard: the Application no longer draws upon any interpretative requirements as to the meaning of the offer and its effect upon the recipient reader but instead proceeds on a point of legal principle.
Pausing there, however, I am asked by the Claimant to note that the Defendant's concession was hardly surprising. The Claimant says it was surely always obvious that the 23 February 2021 communication was not that intended. Read literally, the assertion in the “clarification clause” of the offer that the Defendant would only be required to pay “20&” of the Claimant's damages made no sense and plainly invited clarification. Further, any mention of an 80:20 ratio in an offer from a claimant would ordinarily indicate an expectation for an 80% apportionment in their favour, yet this phrase, insofar as it meant anything, oddly suggested the opposite. The implausibility of the Claimant truly intending to compromise her claim for only 20% of its value becomes even more striking given the Defendant had made an offer many months previously of 60:40 in her favour as well as subsequently admitting primary liability.
These observations, whilst no longer relevant to a former factual question whether the offer had been made in mistake, remain pertinent to the particular circumstances by which the Claimant seeks the relief she does. Mr Wilkinson emphasised that the circumstances whereby an offer of settlement are known by the receiving party to be mistaken must be rare and extreme. Whilst submitting that these particular circumstances justify her Application, the Claimant by no means seeks to suggest that any mistake by a party putting forward a Part 36 should result in an agreement being rendered void. Mr Wilkinson contrasted this case for one where, say, a claimant had offered to accept 80:20 in their favour rather than 90:10 and so where the margin of error would not, or not obviously, have been apparent to the recipient. He adds that the proposition of an obvious and understood mistake being relevant could as much work to the relief of a defendant who, for example, offers a large sum expressed in sterling rather than, say, dollars.
The Claimant accepts the fundamental principle that Part 36 is intended to be a self-contained code but submits it would be a very peculiar procedural code that can wilfully shut its eyes to a mistake of this kind. Whilst there is every justification for the rules to impose limits on the circumstances in which an offeror can change their mind about the making of an intended offer within the initial “relevant period”, there ought to be no such justification when the offer was made, and known to have been made, in error.
Mr Brounger on behalf of the Defendant sought first to qualify the portrayed status of the mistake in issue. Whilst the Defendant now accepts that a mistake had been made by the Claimant's solicitors of the kind defined, Mr Brounger submitted it was not helpful to seek to further categorise or define that mistake as if one might already be applying common law principles. Mr Brounger took issue, for example, with Mr Wilkinson's emphasis upon the mistake being tagged as “obvious”.
By way of similar qualification, and not unconnected to his submission above, Mr Brounger briefly reminded me of the facts as give rise to the Defendant's allegation of contributory negligence against the Deceased. The joint expert accident reconstruction report in the criminal proceedings had concluded that the Deceased was travelling significantly faster than the speed limit, having passed a camera some 100 metres from impact at 46 – 48 mph and then accelerated up to 56mph before the collision. They also concluded that had the Deceased been travelling at the speed limit he would have been able to avoid the collision.
The Defendant's position therefore is that Part 36 is both the starting and end point, being a self-contained code. There is no basis anywhere in Part 36, or otherwise generally in the CPR by way of cross-reference, for example by reference to the Overriding Objective, for importing into Part 36 the feature of an offer having been made by mistake. The application of a strict approach being applied once an offer has been made facilitates certainty and consistency in the operation of a Rule that is deliberately intended to codify and simplify the resolution of disputes. Seen in this way, cases initially focusing upon the interpretation of offers, even if Part 36 offers, have no true bearing on the workings of Part 36 itself and whether it is capable of incorporating the doctrine of mistake.
The Rules Committee, the Defendant submits, could easily have provided an express provision that where there an offer had been accepted under a mutual mistake it could be withdrawn or varied even after acceptance. The...
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Make No Mistake About It: Part 36 Is Compatible With The Doctrine Of Mistake
...decision in O'Grady v B15 Group Limited [2022] EWHC 67 (QB) clarifies that the common law doctrine of mistake is applicable to offers made under CPR Part 36. Surprisingly, this issue had not been addressed directly by the courts or the Rules Committee. In O'Grady, Master Thornett held that ......
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Make No Mistake About It: Part 36 Is Compatible With The Doctrine Of Mistake
...decision in O'Grady v B15 Group Limited [2022] EWHC 67 (QB) clarifies that the common law doctrine of mistake is applicable to offers made under CPR Part 36. Surprisingly, this issue had not been addressed directly by the courts or the Rules Committee. In O'Grady, Master Thornett held that ......
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...plays out both in the EU and in the UK. In another decision of more immediate consequence to litigators, O'Grady v B15 Group Limited [2022] EWHC 67 (QB), Master Thornett came to the perhaps surprising but certainly pragmatic conclusion that the doctrine of common law mistake could apply to ......
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