28 March, 2019
In the recent case of Fitton v Ageas (2018) Fam Ct (Judge Parker) 08/11/2018, a Circuit Judge has ruled that the protocol for low-value personal injury claims is a self-contained code and as a result the normal principles of contract such as the doctrine of mistake does not apply.
The claimant, Mr Fitton brought a claim for damages for personal injury loss and damage, arising out of a road traffic accident. The matter was referred to the MOJ portal. At stage two, a settlement pack was sent by the claimant including an initial offer of £4,125 for pain, suffering and loss of amenity, £670 for physiotherapy and £30 for miscellaneous expenses, making a total of £4,825. The defendant sent a response in the portal saying that they could not agree physiotherapy charges and would not consider the miscellaneous expenses. They responded with a counter figure of £2,500 for pain, suffering and loss of amenity.
The claimant replied, they reduced the physiotherapy claim and miscellaneous to nil (the defendant was to provide physiotherapy) and the claim for pain, suffering and loss of amenity was reduced to £3,900 but the claimant's representative did not amend the gross amount of £2,500, which still appeared in the gross settlement box.
The defendant saw the sum of £2,500 in the gross settlement amount box and ticked the 'yes' box, indicating that an agreement had been reached in the gross sum of £2,500. A cheque for £2,500 was sent to the claimant; however, the claimant's solicitor thought that the matter had been settled in the sum of £3,900. The claimant's solicitor issued part 8 proceedings to have the level of damages assessed by the court by way of a stage 3 oral hearing.
At first instant, DJ Nasser dealing with the issue as preliminary point ruled: "It cannot be the case that there is a compromise in this particular case where the defendant has effectively accepted its own offer, inferring it had been made by the claimant when it was clear that it has not and the claimant has not ticked the box."
However, on appeal, HHJ Parker found that the matter was concluded at stage 2 of the protocol. He remarked that the protocol for low value personal injury claims was introduced to streamline and simplify low value claims. It provides a self-contained code to enable parties to negotiate a settlement in low value cases. He noted that the protocol has been designed with the deliberate intention of avoiding low value cases "spiralling into unnecessary and costly litigation". There was an offer within the protocol made by the claimant albeit mistakenly and there was an acceptance within the protocol made by the defendant. The matter was compromised, and settlement within the meaning of the protocol was thereby reached.
This case serves as a reminder that there is no room for error and that the doctrine of mistake does not apply to the portal for low value personal injury claims. Parties who use the portal must therefore proceed with caution, especially when inserting the gross amount figure for settlement.
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