Abuse of Process: part 36 offer ‘on the whole of the claim’ includes vehicle damages brought separately

The claim arose from an RTA in 2019. A claim was brought in the MOJ Portal for PSLA only, with the First Solicitors indicating that there was a claim for vehicle damages, but the same was being pursued outside the portal by another company. The claim exited the portal and thereafter followed numerous communications, including a pre-medical offer from the Defendant for PSLA only, an offer to settle vehicle damages on a without prejudice basis, and an offer to settle the whole claim. In January 2020 the Defendant made a Part 36 offer on “the whole of the claim”. The offer was accepted without a request for further information or attempt to reserve the position as to vehicle damages.

At the beginning of 2021 the Second Solicitors, within the same group as the First Solicitors, intimated a claim for vehicle damages. The Defendant initially engaged with the claim, indicating they would settle, before entering a defence founded on the argument that the claim had already been compromised by the 2020 Part 36 offer, and as such the proceedings were abusive.

District Judge Hickinbottom, sitting in Sheffield County Court concluded that, as per HHJ Gargan in Hogg v Newton, the words “the whole of the claim” must be given their natural meaning. Save for the presence of special factors, in the context of matters pertaining to an RTA that natural meaning pertained to all claims that may arise from the RTA.

The words used must be construed within the factual matrix preceding the offer and acceptance. Regard was paid to the fact previous correspondence had sought to separate the claims, negotiating both PSLA and vehicle damages separately. Those attempts to separate the claims were distinct from the offer on “the whole of the claim”. DJ Hickinbottom concluded that despite the indication on the CNF, the intention of the parties upon making and accepting the offer was clear, and accordingly not only the PSLA claim had been settled.

The case is distinct from a developing parallel line of authorities relating to cases whereby the PSLA claim is disposed of, either by way of settlement or judicial determination, within the portal or at Stage 3, see for example Poku v Abedin. Given the frequency with which insured losses are pursued outside of the portal, it is essential for both Claimant and Defendant solicitor’s alike to be alive to the fact that indicating the same on the CNF as per 6.4 of the Protocol, will not necessarily exclude vehicle damages from the scope of a Part 36 offer.

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