The claimant brought a claim for damages for personal injury sustained in a road traffic accident, said to have been caused by the defendant’s breach of duty of care. The claimant sought damages for a whiplash neck injury and a lower back injury. The defendant admitted liability but denied causation. The claimant made an offer under CPR Pt 36 to accept 90% of the claim for damages and interest to be assessed, on the basis that liability was admitted. The offer letter referred only to “liability” and not to “causation”. The offer was not accepted by the defendant. Following a trial, judgment was entered and damages were limited to one head of loss only: that of the neck injury. The district judge concluded that the Part 36 offer was not a genuine offer to settle and awarded costs without taking it into account. Dismissing the claimant’s appeal against that decision, the judge held that the defendant had bettered what was offered within the Part 36 offer because liability was limited to damages for only one of the two alleged injuries.
On the claimant’s further appeal—
Held, appeal dismissed. Cases of the present kind turned, inevitably, on the precise wording of the pleadings and the particular terms of the Part 36 offer. In order to avoid the kind of dispute which had arisen in the present case, especially in a low value claim, it was important to make express reference in the Part 36 offer to whether the offer related to the whole claim or part of it and/or the precise issue to which it related, in accordance with CPR r 36.5(1)(d). In particular, if the issue to be settled was “liability”, it would be sensible to make clear whether the defendant was being invited only to admit a breach of duty, or if the admission was intended to go further, what damage the defendant was being invited to accept was caused by the breach of duty. In the present case, on a true construction of the Part 36 offer, the reasonable reader would have understood the offer to be addressing liability and causation and to relate to both heads of damage. Although the offer was confined expressly to the “issue of liability”, the reasonable reader would have understood it to be addressing the entire claim (paras 15, 17, 18, 22).
Gordon Exall (instructed by Atherton Godfrey LLP, Doncaster) for the claimant.
Simon Browne QC and Anthony Johnson (instructed by Keoghs LLP) for the defendant.