Hogg v Newton (Judgment handed down 18th May 2018) highlights the importance of ensuring that every intended element of a claim is included, or excluded, within a Part 36 offer, and also emphasises the danger of not withdrawing Part 36 offers, no matter how old.
The brief facts of the case are that the Claimant was injured in a road traffic accident, in February 2013 his Solicitors made a Part 36 offer in the sum of £1,600, purported to be in full and final settlement of the whole claim. 13 months later, the personal injury head of claim was settled in the sum of £650.00. In March 2016, proceedings were issued and the value was stated to be in excess of £125,000. The Defendant then accepted the never-withdrawn Part 36 offer and the balance of £950 was paid, with a declaration thereafter being sought that the matter had been compromised.
The Claimant sought to argue that the offer had been exclusive of the credit hire claim, which comprised £122,000 of the eventual value placed on the matter, and that the offer had lapsed following the resolution of the personal injury element. DJ Reed did not accept either of the Claimant’s arguments and the Defendant’s Application was thereafter granted.
The Claimant appealed and, at the Hearing of the same, contended that the February 2013 offer had not in fact been a valid Part 36 offer, because it was lacking some of the wording required. Namely, that the offer had not included the phrase “it is intended to have the consequences of section 1 of Part 36” and that it had not made it clear that the offer could be accepted after the expiry of the 21-day period.
HHJ Gargan, presiding, dismissed the Claimant’s Appeal and found that as the February 2013 offer letter confirmed that the Claimant was “seeking the full sanctions available under Part 36”, this was sufficient and a reasonable man would have believed that it was a valid Part 36 offer. Further, the fact that the 21-day period had been referred to within the offer letter was also found to be adequate.
The Claimant also sought to argue that the Part 36 offer (that they were denying was a valid offer) had been accepted in relation to the personal injury claim and that the offer had therefore been revoked. Again, HHJ Gargan rejected the Claimant’s argument as the offer had never been formally withdrawn. It was also held that inferring that the offer was still open for acceptance was more consistent with the overriding objective.
The decision in Hogg is therefore of great interest to both receiving and paying parties. Whilst in this case, the Court found that the use of the specified Part 36 wording was not compulsory on the facts of the specific case, the potential consequences of a defective Part 36 offer remain weighty for either party.