Lawyers Making Mistakes

Will the Court Be Willing to Intervene On A Mistaken Part 36 Offer

The technical aspects of the law mean that it is easy to make a mistake unless you check and double check paperwork, and when you are dealing with other solicitors, you can be sure that those mistakes will be picked up pretty quickly.

Recently, a case highlighted a simple error where a claimant’s solicitor wrote something the wrong way round, which was then accepted by the defendant’s solicitor.

A ‘Part 36 offer’ is an offer made from one party to another with a view toward settling ongoing or threatened legal proceedings. It is governed by Part 36 of the Civil Procedure Rules, and the rules surrounding its implementation have traditionally been very strict and very narrowly interpreted by the Courts.

In the case of O'Grady (widow and executrix of the estate of Martin James O'Brien) v B15 Group Ltd (formerly Brighthouse Group Ltd) the claimant’s husband had been killed when a lorry, driven by the defendant's employee, had attempted to execute a U-turn on a dual carriageway in contravention of 'no U-turn' signs. The main liability under the claim was admitted, but the question of contributory negligence remained. The claimant's solicitor had put forward a Part 36 offer and had mistakenly offered to apportion liability at 80/20 in favour of the defendant, rather than 80/20 in favour of the claimant, as had been intended.

The Queen's Bench Division held that the doctrine of common law mistake could apply to a Pt 36 offer in circumstances where a clear and obvious mistake had been made, and that had been appreciated by the Pt 36 offeree at the point of acceptance.

Following the defendant's solicitor's acceptance of the offer, the claimant's solicitor had emailed to make it clear that it had been a mistake, and the claimant had then applied for permission to withdraw her offer or to change its terms under CPR 36.10(2)(b).

The defendant had conceded that the 'mistake' in question was of a kind that would render any agreement void if the court were to accept that the common law doctrine of mistake was relevant. The court held that, in the circumstances, no binding agreement or settlement arose in respect of any of the claims.

Fortunately, there are very few errors made by solicitors that cannot be rectified quickly. After all, we are all professional service firms and are here to get the best result for clients.

Litigation is often very contentious, and Part 36 offers, as well as negotiation and mediation, can often help resolve issues.

Should you need a solicitor to help you in any dispute, or even professional negligence, please do contact Oliver Kew in our Reading office on 0118 957 5337.

Published on 31/01/2022

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