“Unconscionable” for defendant to benefit from portal mistake


Davey: Justice was so rough that it became injustice

The overriding objective means that defendants can be prevented from taking advantage of claimant errors to achieve lower settlements in RTA portal cases, a judge has ruled.

His Honour Judge Davey said that where a defendant knew of a claimant’s mistake before purporting to accept the claimant’s offer, and armed with that knowledge took advantage in “unconscionable” circumstances, the agreement apparently reached could not conclude the action.

In refusing permission to appeal, the Court of Appeal said to have ruled otherwise would have perpetuated a “monstrous injustice”.

The ruling by HHJ Davey contradicts two county court judgments we reported recently which held that the common law doctrine of unilateral mistake could not be used to set aside settlements in portal cases where claimant solicitors erroneously included lower figures within global offers.

Sitting at Bradford County Court, HHJ Davey said that nowhere in the original ruling in Harris v Browne was there a reference to the overriding objective, “let alone any argument in respect of it”.

He went on: “I am absolutely not attempting to lay down any principle in this case. I simply deal with it on its own unique facts.

“In my judgment, on the unique facts of this case, the overriding objective demands that external data can, and should, be considered when deciding if the overriding objective has been fulfilled.”

The court heard that the issue for District Judge Hickinbottom was whether or not a concluded and binding agreement to settle the case had been reached at the end of stage two of the portal proceedings.

HHJ Davey said a third offer was made by claimant Margaret Harris to John Browne in August 2018, in which the cumulative heads of loss set at £8,395, but the “global offer box” showed only £6,115. This offer was accepted by the defendant.

The solicitor argued at the first hearing that she had been unable to change the figure in the box and in an email had explained her mistake to the defendant.

The claimants argued, and District Judge Hickinbottom accepted, that there had been a “unilateral mistake” in the formation of the settlement agreement, so that, applying common law principles, it was void.

DJ Hickinbottom ruled, however, that the RTA protocol and the portal were a “standalone” statutory creation which was “rough and ready”.

He concluded that, although it may seem “unfair” for a settlement to be upheld in such circumstances, the protocol did not allow for references to external data.

HHJ Davey disagreed, saying counsel had been unable to point to any previous cases where it was agreed that the defendants knew before accepting the offer that a mistake had been made.

“I entirely accept, as appears from the case-law that I have rehearsed, that in low value cases such as those for which the portal is designed, an element of rough justice will, or may be, involved; but that, in my view, cannot be used as a licence for the deliberate infliction of any degree of injustice…

“Rough justice there may be but, on a continuum of roughness, moving through rougher justice and roughest justice, there must eventually come a point where the justice is so rough that it becomes injustice – and that point, in my view, has been reached on the unique facts of this particular case.”

The Court of Appeal said HHJ Davey’s assessment of the overriding objective in this case was “not capable of successful challenge in this court”. Further, it agreed that the decision turned entirely on its facts and gave rise to no general issue of importance.

“I reach this conclusion with no regret whatsoever, so avoiding what would obviously be a monstrous injustice.”

Adam Oldale, negotiations manager at Total Legal Solutions, acted for True LLP in the appeal.

He said: “This case was very important in that it is the first that I am aware of that went against the rising number of decisions which stated that the doctrine of mistake didn’t apply on cases within the portal.

“Where a defendant knows it’s a mistake, it would be real injustice to not set aside the agreement.”




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