Claimant “bound” by failure to change figure in portal


Welsh: Those using the portal must be very careful to check the offer box

A claimant whose solicitors failed to amend the gross settlement box in the Ministry of Justice portal while negotiating with the defendant insurer was stuck with the figure, a circuit judge has ruled.

His Honour Judge Parker said the portal involved a self-contained code that operated to the exclusion of normal principles of contract.

According to DWF, which acted for the defendant in Fitton v Ageas, the claimant’s solicitors submitted a stage 2 settlement pack documenting an initial offer of £4,125 for pain, suffering and loss of amenity, £670 for physiotherapy and £30 for miscellaneous expenses, making a total offer of £4,825.

The defendant did not agree the physiotherapy charges, would not consider making any offer for miscellaneous expenses and offered £2,500 for pain, suffering and loss of amenity.

In response, the claimant reduced the physiotherapy claim to nil – because the defendant was providing the treatment – the claim for miscellaneous expenses to nil and the claim for pain, suffering and loss of amenity to £3,900.

A response was sent but the claimant’s representatives did not amend the gross settlement box even though there were two prompts built into the system to confirm the response should be sent.

The defendant therefore ticked the ‘yes’ box, indicating that agreement had been reached in the gross sum of £2,500 and that that was the agreed settlement figure.

The claimant’s solicitors then issued part 8 proceedings seeking to have the level of damages assessed by the court by way of a stage 3 oral hearing because, in their opinion, there was no compromise reached.

Deputy District Judge Nasser in St Helens County Court, dealing with this as a preliminary issue, 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.”

On appeal, HHJ Parker found that the matter was concluded at stage 2 of the protocol, in that the claimant’s representatives’ actions had led to failure to take heed of prompts with regard to making of the offer.

He rejected the claimant’s argument that the defendant was estopped from raising the point that a compromise had been reached between the parties during stage 2, as it was clear from correspondence that each party maintained the case had been compromised but at different figures.

The claimant also argued that, whilst portal claims were subject to certain rules, they did not exist in a vacuum which was not governed by common law principles such as compromise and law of mistake.

HHJ Parker stressed that the purpose of the protocol was to streamline and simplify low-value claims and the self-contained code enabled the parties to negotiate the settlement.

Whilst the process might on occasion provide rough justice, he continued, it was generally a proportionate and cost-effective way of achieving settlement and thus the overall benefits of the system outweighed any negatives.

HHJ Parker said: “There is very good reason for the protocol to be self-contained, to the exclusion of normal principles of contract and, for example, the doctrine of mistake – because of the risk that the objective sought by the protocol is thwarted by disproportionate satellite litigation.

“The protocol has been designed with the deliberate intention to avoid low-value personal injury claims arising out of road traffic accidents spiralling into unnecessary and costly litigation.

“It is a self-contained code and its operation is to the exclusion of normal principles of contract in a way that is similar to the operation of part 36.”

Finding otherwise risked undermining the principles and intentions of the protocol, the judge concluded, ruling that a compromise had been reached under stage 2.

He dismissed the claimant’s claim and awarded costs of the part 8 proceedings and appeal.

Richard Welsh, a senior associate in DWF’s Leeds office, said: “This case illustrates the importance of claimants correctly following the procedure when dealing with the MoJ portal.

“The judgment reiterates earlier cases regarding the doctrine of mistake not applying to the portal and that the portal rules are very much a self-contained code.

“It is therefore clear those using the portal must be very careful to follow the rules and check the offer box prior to submitting an offer or response. The parties need not look behind the offer at the individual heads of loss.”

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