Huntley v Simmonds [2009] EWHC 406 (QB)
Huntley v Simmonds [2009] EWHC 406 (QB)
COSTS IN HUNTLEY V SIMMONDS[2009] EWHC 406 (QB)
Ronald Walker QC and Nigel Lewers represented the Defendant in the High Court decision in Huntley v Simmonds. The Claimant, a 27 year old man, was injured when the car in which he was travelling as a passenger, driven by the Defendant, went out of control and cashed. Liability was admitted and the matter therefore came before Underhill J on the issue of quantum only.
Judgment was handed down on the 13th February. The Claimant failed to obtain a more advantageous award than had been offered by the Defendant shortly before the commencement of the damages assessment hearing. The matter then returned to court on the issue of costs. The Defendant asked for an order under CPR 36.14(2) that the Defendant be awarded his costs from 21 days after the offer. The application was opposed by the Claimant on the basis that the offer in question failed to come within the remit of CPR 36.14(2)
Initially the Claimant made an offer of a lump sum of £1,000,000 net of interim payments and a PPO in the sum of £1,000 per annum. That offer was made on 10th October 2008. On 13th October 2008 the Defendant made an offer purportedly pursuant to Part 36 of a lump sum of £3,600,000. On 15th October 2008 the Claimant offered to accept a reduced offer. The Defendant put forward a counter offer on 16th October 2008. The terms of this offer became the principal issue in dispute. The offer read:
“We acknowledge receipt of your letter dated 15th October, received via email 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 client will pay your costs of the action to be the subject of detailed assessment in default of agreement. This offer is made pursuant to the provisions of CPR Part 36 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 award made by the court was not definitively calculated, but it was accepted that it was less than the capitalised value of the Defendant’s above offer in the sum of £2,926,000.
The Claimant submitted that the above offer did not fall squarely within the requirements of CPR 36.14(2). The specific objections were that the offer;
i. failed to state the duration of the PPO offered, as required by CPR 36.5(4)(c)(i)
ii. failed to provide sufficient detail of the index by reference to which the PPO was to vary, required by CPR 36.5(4)(c)(iii) (since it referred to ASHE 6115 without identifying a centile)
iii. failed to include the requisite statement under paragraph 4(d) that continuity of payment would be assured.
The Defendant made a two fold response to these submissions. First it was submitted that the points raised the purest technicalities and as such they were not such to render the offer non compliant. Second, if the court was not persuaded to that view, it was submitted that the offer should be construed under the court’s discretion afforded by CPR 44.3(4)(c) to produce the same result as if formal compliance had been made.
The judge accepted the first of the Defendant’s three points on the “purest technicality” argument, namely that there was no need to specify that the PPO offered pertained to the rest of the Claimant’s life, and that the offer could only have been construed as being in accordance with the “normal” basis of the 75th centile. However the third submission was rejected. This submission dealt with the absence of the necessary statement, with the Defendant drawing the court’s attention to the fact that the Claimant had corresponded with the Defendant’s insurers and therefore knew their identity. In any event, the Defendant said, the Claimant could have sought clarification of this matter by simple request.
The court did, however, accept the second limb of the Defendant’s overall submissions on costs. That is to say the court deemed it proper to exercise its discretion under CPR 44.3(4)(c) to provide for the same costs consequence as would have resulted had the Defendant’s offer been strictly Part 36 compliant.
Georgina Crawford