Seabrook v Adam
| Jurisdiction | England & Wales |
| Judge | Lady Justice Asplin,Lord Justice Males,Lord Justice Lewison |
| Judgment Date | 18 March 2021 |
| Neutral Citation | [2021] EWCA Civ 382 |
| Docket Number | Case No: A2/2019/2943 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 2021 |
[2021] EWCA Civ 382
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COMBINED COURT CENTRE
Her Honour Judge Walden-Smith
D95YM864
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lady Justice Asplin
and
Lord Justice Males
Case No: A2/2019/2943
Mr Gordon Exall (instructed by Atherton Godfrey LLP) for the Appellant
Mr Simon Browne QC and Mr Anthony Johnson (instructed by Keoghs LLP) for the Respondent
Hearing date: Wednesday, 10 th March 2021
Approved Judgment
This appeal is concerned with the interpretation and effect of Part 36 offers made in a low value personal injury claim in relation to a road traffic accident. Breach of a duty of care having been admitted and causation denied, Mr Scott Seabrook, who was the Claimant in the action and the Appellant before us, made two Part 36 offers. They were in similar but not identical form. They were to accept 90% of the claim for damages and interest to be assessed, on the basis that liability was admitted. The offers were not accepted. Following a trial, judgment was entered and damages were limited to £1,574.50. Were the Part 36 offers genuine offers to settle, and if they were, did Mr Seabrook better those offers because 100% of the claim for damages was awarded in relation to one of the heads of loss, albeit that nothing was awarded in relation to the other?
District Judge Reeves, who dealt with costs, did not consider that to be the case. He concluded that the offers were not genuine offers to settle and awarded costs without taking them into account. His order, dated 22 January 2019, was appealed to Her Honour Judge Walden-Smith. In an ex tempore judgment given on 6 November 2019, she dismissed the appeal. In summary, she held that it was the Defendant and Respondent to this appeal, Mr Jhasen Adam, who had bettered the Part 36 offers because liability was limited to damages for only one of the two alleged injuries.
The claim itself was brought by Mr Seabrook as a result of a road traffic collision on 6 December 2014. Mr Adam, who was travelling in the same direction, collided with the rear of Mr Seabrook's vehicle when Mr Seabrook brought his vehicle to a halt.
It was alleged that the accident was caused as a result of a breach of duty of care by Mr Adam, that injury was caused as a result and that Mr Seabrook had suffered both a whiplash injury to his neck and a back injury. At paragraph 10 of the Particulars of Claim it was pleaded that Mr Adam had admitted what was described as “primary liability” in a letter written in response to a claim notification form under the terms of the relevant pre-action protocol. In his Defence, Mr Adam admitted that the collision had occurred in the manner pleaded in the Particulars of Claim and that the accident had occurred as a result of a breach of duty on his part. However, causation was denied in the following terms:
“2… causation is denied on the basis that such breach was not causative of the injury, loss and damage alleged to have been sustained by the Claimant. Since damage is the requirement of a claim in negligence, the case is not fit for the entry of judgment for the Claimant ( Blundell v Rimmer [1971] WLR 123).”
Two Part 36 offers were made on 9 March 2018. Although I refer to them below as the “First Offer” and the “Second Offer” I do so merely in order to differentiate between them when necessary. I do not intend to suggest that one was made before or after the other. They were:
and“To accept on condition that liability is admitted by the offeree, 90% of the claim for damages and interest, to be assessed.”
(the “First Offer”)
“To agree the issue of liability on the basis that the Claimant will accept 90% of the claim for damages and interest, to be assessed.”
(the “Second Offer”).
It was accepted both before the judge and before us that the offers, whilst being differently worded, amounted to much the same thing. It seems to me that although in general terms they are very similar, it is clear from the natural meaning of the words used and from the way in which the relevant boxes on the respective N242A forms were ticked that the First Offer was framed in respect of the whole claim and that the Second Offer addressed an issue in the claim, being that of liability. I consider the proper interpretation of both offers in more detail below.
Following the fast track hearing before Deputy District Judge Buss, judgment was entered in the sum of £1,574.50. It is accepted that that related to the whiplash injury. It is also accepted that causation was not proved in relation to the lower back injury and that none of the damages awarded related to that head of loss. Approximately £10,000 had been claimed in total.
Despite the fact that only £1,574.50 was awarded in damages, it was said that had Mr Adam accepted either or both of the Part 36 offers, judgment would have been entered and he would only have had to pay 90% of the damages which were ultimately awarded. In the event, therefore, it is said that Mr Seabrook bettered his own Part 36 offers because he obtained 100% of the damages which were awarded despite the fact that Mr Adam was not found liable in respect of the back injury at all.
The judge rejected that analysis. She stated that: “Had the Defendant accepted the offer and accepted liability, then that would have meant that it was admitting liability for the injuries that the Claimant alleged it sustained in this road accident; that is, both a neck and back injury.” See judgment at [25]. She went on:
“26. The total amount that was being sought was £10,000. Whilst it is clear that Lovell and Singh, ( sic) which was being referred to in the course of submission before me, makes clear that parties are entitled to argue all points so long as it does not contradict the judgment that is being entered, it would not have been open to the Defendant to argue that the Defendant's actions were not causative of any back injury.
27. With an admission, the Claimant would still have been required to establish the existence of a back injury and would have been required to establish the appropriate quantum for any back injury which would have involved the extent of the injury and the time that that injury lasted. All those matters would have remained open to challenge. However, having established a loss – and, as I say, that is a constituted part of the negligence – the Defendant, having admitted causation, could not have continued to argue that point. In this case that would have been highly significant as the Defendant did in fact succeed in establishing that he was not causative of the back injury, as it is clear that no damages were awarded for a back injury.
28. In the circumstances, therefore, as it is abundantly clear that the Deputy District Judge did not find that this injury to the back alleged by the Claimant was caused by the road accident, the Defendant did better what was offered within the Part 36 offer letter because liability remained limited to damages for the neck injury.
29. In effect, this offer, which was a means by which the Claimant was seeking to be able to enter judgment against the Defendant, would, if construed in the way argued for by the Claimant, mean that in any case where the Defendant was seeking to contest causation of an injury, the Claimant will be in a position to make an offer to effectively discount any damages that might otherwise be awarded in order to ensure that liability was entered and that causation could no longer be argued.
30. … Part 36 is not designed to deny any realistic possibility of a party arguing fundamental principles with regard to liability. That would be an affront to the right to a fair trial. A Defendant would be placed in an impossible situation of being required to accept an offer because,...
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