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23.09.07: Ellison v Fairclough

(Decision of HHJ Stewart QC - 30th July 2007 - Liverpool County Court)

 

Following an RTA, the Claimant instructed solicitors who conducted initial investigations and commissioned medical evidence. The medical evidence was disclosed to the Defendants and the Claimants solicitors invited the Defendant to make their best offer within 21 days.

 

The Defendant made an offer of £1100.00. The Claimants solicitors wrote and rejected the Defendant 'best' offer and invited an increased offer within 7 days. An increased offer was not forthcoming and proceedings were issued in the meantime. (ie. Five days after the seven-day letter.)

 

Subsequently, damages were agreed between the parties in the sum of £1700.00.

The Defendants representatives maintained that proceedings had been issued prematurely. (ie. Prior to the exhaustion of the personal injury protocol.)

 

District Judge Baker sitting in Birkenhead County Court agreed with the Defendants submission and limited the Claimants costs to those which would have been allowed (per CPR Part 45 predictable costs) had proceedings not been issued.

 

On Appeal, HHJ Stewart QC overturned the District Judges decision finding that the Claimant should be entitled to standard basis costs following successful conclusion of the claim.

Our opinion:

 

Two factors should be present in order to rely on this case:

  1. The amount of the ultimately agreed/awarded damages must exceed the amount offered prior to proceedings (the larger the difference, the better);
  2. The letter disclosing medical evidence and inviting an offer must be as carefully worded as it was in the above case.

 

Ultimately, the Court has to be satisfied that there has been a genuine attempt to settle as opposed to what might be deemed a cynical attempt to avoid the predictable costs regime.