An offer of split liability was not Part 36 compliant.

 Mundy v Tui [2023] EWHC 385 (CH)

A Claimant brought a claim for damages arising from a illness that he suffered whilst on holiday. The original claim was for a sum between £25,000 and £35,000, however the Claimant was awarded damages totalling £3,805.00.

The Claimant had made two offers, on the same day, both of which were designated as Part 36 offers. One was to settle the case for the sum of £20,000. The second offer was to settle the issue of liability offer on a split liability basis of 90/10 in favour of the Claimant. These offers were not accepted by the Defendant. The Defendant made its own Part 36 offer, to settle the Claimant’s claim in the sum of £4,000, but this was not accepted by the Claimant.

The issue to be decided arose from the following quandary:

Had the Defendant beaten its own offer since Mr Mundy had been awarded less than £4,000 on his claim, and within the terms of CPR 36.17(1)(a), the claimant had failed to obtain a judgment more advantageous than a defendant’s Part 36 offer?

Or, had the Claimant beaten his own offer of liability, given that the judgement placed 100% liability on the Defendant, and therefore the case fell within CPR 36.17(1)(b) instead, because judgment against the defendant was at least as advantageous to him as the proposals contained in his 90/10 liability offer?

The Judge in the County Court decided that the best interpretation of the Claimant’s offer on liability was as an offering to accept 90% of the value of the claim. Consequently, the Claimant failed to recover a judgment which was at least as advantageous to him as the proposals contained in his Part 36 offer, and the CPR 36.17(4) consequences did not follow.

The Claimant appealed the Judge’s decision, which was sent to the High Court for determination. Mrs Justice Collins Rice decided that the County Court Judge’s decision on the issues raised by the rejected 90/10 liability offer was not ‘wrong’.

Whilst there is no existing authority on precisely how these offers fitted in to CPR rules on Part 36, it was determined that the analysis done by the County Court Judge was not wrong.

The full judgment can be accessed here.

The Court refused a Claimant’s application to exclude expert evidence relied upon by the Defendant.

Fawcett & Ors v TUI UK Ltd [2023] EWHC 400 (KB)

The Claimant brought an application to exclude expert evidence in a personal injury trial, specifically for a fatal accident and personal injury damages claim.

The application surrounded the issue of evidence of local standards which may have been relevant in determining the duty of care owed by the excursion provider (Defendant), who the Claimant said was vicariously liable. Permission was granted for the parties to rely on expert oral expert evidence of local standards and local public law.

The Defendant filed and served its own report, of which the claimant made a number of criticisms. The Claimant brought the application to exclude it, referencing the sheer extent of the disregard of the obligations and professional duties of an expert that necessitates its excision from the trial evidence; essentially, that the expert was not qualified to hold such an opinion.

The Defendant resisted the application, saying that there had been no “egregious breach” of the CPR Part 35 duties to the court to justify exclusion of the report.

The application was refused by the court. The Defendant’s challenges to the contents of the report was a matter for submission to the trial judge when the case comes on. How the trial judge chooses to deal with the matter is for that judge themself, taking into account the context of the evidence as a whole. Whilst there may have been grounds for cross examination of the expert, this did not justify excluding the evidence overall.

The full judgment can be accessed here.

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