My previous blog post on the decision of C v D - see – http://www.interalialegal.com/2011/01/when-is-an-expressed-reference-to-a-part-36-offer-not-a-valid-part-36-offer/ has now been overturned on appeal.  The essence of the Court of Appeal’s decision [2011] EWCA Civ 646, is below.

On 27 May 2011, the Court of Appeal heard the defendant’s appeal (Rix, Rimer and Stanley Burnton LJJ).  The three questions before the Court of Appeal were:

(i) Can a Part 36 offer be made in terms which limit the acceptance of the offer to a stipulated period, such that the offer lapses at the end of that period?;

(ii) What the true construction was of the respondent’s offer being “open for 21 days” in the context of what was clearly intended to be a Part 36 offer?; and

(iii) If withdrawal of a Part 36 offer is necessary, was the respondent’s offer withdrawn – either by the time limited terms of the offer itself, or by the emails which followed it.

Rix LJ gave the leading judgment of the Court (with which Rimer and Stanley Burnton LJJ concurred). 

On the first question Rix LJ concluded that it could not, for essentially three reasons.  First, Rule 36.9(2) indicates that a Part 36 offer comes to an end by withdrawal rather than in accordance with its own terms, since otherwise the offer can be accepted “at any time”.  Secondly, the Rule 36.14(3) sanction does not apply where the Part 36 offer is withdrawn and it is the policy of Part 36 that for benefits and sanctions to work, then the offer must be kept open.  Thirdly, there is no express loss of sanction where the offer lapses as distinct from being withdrawn, but it would be unfair if a claimant could maintain the benefit of a Part 36 offer which lapsed where he could not maintain its benefit where it was withdrawn. 

The Court of Appeal had regard to its earlier decision in Gibbon, especially paragraph 16 of Moore-Bick LJ’s Judgment where he said:

“The Rules state clearly how a Part 36 Offer may be made, how it may be varied and how it may be withdrawn.  They do not provide for it to lapse or become incapable of acceptance on being rejected by the offeree.  That would be the case at common law, but it is inconsistent with the concepts underlying Part 36, which proceeds on the footing that the offer is on the table and available for acceptance until the offeror himself chooses to withdraw it.”

Rix LJ went on to express that the Part 36 regime could not accommodate a time limited offer.  The essence of a Part 36 offer is that it lies on the table until formally withdrawn.  Therefore, the scheme seeks to encourage offers which are not time limited.  The scheme nevertheless permits flexibility in permitting offers to be amended and withdrawn.  This process, however, is strictly regulated in the interests of clarity and certainty. The Court of Appeal construed the claimant’s offer in the context of the Part 36 regime and accordingly found that such a regime does not permit an offer within the scheme to be time limited.

On the second question Rix LJ found it reasonable to read the words “open for 21 days” as meaning that it will not be withdrawn within 21 days, as opposed to the offer would automatically lapse at the end of that period. He also applied the maxim that words should be understood in such a way that the matter is effective rather than ineffective.

The Court of Appeal had no trouble disposing of the third question. They found that none of the exchange of emails in this particular case amounted to a withdrawal of the offer; they simply confirmed an extension of the 21 day period.

The Court of Appeal allowed the appeal and found that the defendant’s acceptance of the alternative offer to pay £2,000,000 on 5 November 2010 was effective on the basis that the claimant had made a Part 36 offer which had never been withdrawn.

When the High Court gave judgment in this case, it was the words of the offer that were important; the offeror’s intention was not relevant.  The Court of Appeal has reversed this thinking by clarifying that if it is the claimant’s expressed intention to make a Part 36 offer, any ambiguities raising a question as to whether the offer does or does not comply with the requirements of Part 36 will be interpreted in a way to make it so compliant.

In recently perusing “Bar Barometer – Trends in the profile of the Bar” for March 2011, the following statistics show that the Bar is a male-dominated profession by a ratio of 2:1; over three-quarters of the profession are white and white QCs account for over ninety per cent of the practising profession. 

The Bar Council and the Bar Standards Board have stated that “continuing to enhance equality, diversity and fair access to the profession are strategic priorities and fundamental objectives”.

The Bar

• In 2009/10 15,270 barristers held practising certificates
• 12,241 (80%) were self employed and 3,029 (20%) were employed
• 10,011 (65.6%) were men and 5,259 (34.4%) were women
• 1,545 (10.1%) barristers are from a black and minority ethnic group
• 11,721 (76.7%) were white barristers
• 2,004 (13.1%) did not disclose their ethnicity  

Queen’s Counsel

• In 2009/10 there were 1,318 members of Queen’s Counsel (QC)
• QCs constituted 8.6% of the practising profession
• 1,179 (89%) were men
• 139 (11%) were women
• 57 (4.3%) were from a black and minority ethnic group
• 1,207 (91.5%) were white barristers
• 54 (4.1%) of barristers did not disclose their ethnicity

As a further note to readers, Mrs Justice Dobbs is the only BME judge in the High Court (out of 108 High Court judges).  There are no BME judges in the Court of Appeal (out of 37 Lord Justices of Appeal) or the UK Supreme Court (out of 12 Supreme Court justices).

The date for the capturing of information for the 2011 Census is today (27.3.2011).  If you have not done so, do try and ensure your forms are completed and sent off in early course, either in the post or online.  (Doing it online is, in my view, preferable, as you get a submission receipt). 

Many people seem not to be aware of s.8 of the Census Act 1920.  The fines imposed therein (which is the maximum of a level 3 fine on the standard scale) can be found within s.17(1) of the Criminal Justice Act 1991.

My previous post on Uren v Corporate Leisure (UK) and ors [2010] EWHC 46 (QB) is below

http://www.interalialegal.com/2010/02/an-update-on-the-law-of-negligence/

Mr Uren has now appealed to the Court of Appeal against the decision of Field J – see Robert Lee Uren v (1) Corporate Leisure (UK) Ltd and (2) Ministry of Defence [2011] EWCA Civ 66.  The appellant averred that an insufficient and unsuitable risk assessment had been carried out by the respondents.  The argument was developed that if the assessment had been carried out properly than it would have revealed a need to warn contestants not to dive head first into the pool. 

The Court of Appeal allowed the appeal.  In so doing, they found that Field J’s assessment of risk was not correct.  Although Field J was correct to assert that an employer’s duty to carry out a risk assessment is non-delegable, this was not a finding that in every case an employer must carry out its own risk assessment.  In circumstances where an employer contracted out the risk assessment of an activity and could satisfy itself that the risk assessment carried out by the contractor was thorough, then it might lead to the conclusion that the employer had carried out a suitable and sufficient risk assessment.  The Court of Appeal expressed that this would be a question of fact and degree in each case.

In the instant case, the Court of Appeal found that the risk assessment carried out by the contractor was neither suitable or sufficient and could not be relied upon by the employer.

Rudyard Kipling Thorpe (Litigation Friend of Leonie Leanthie Hill) v Fellowes Solicitors LLP [2011] EWHC 61 (QB) is authority for the proposition that solicitors have no need to investigate an elderly person’s capacity to contract without good reason. 

 Facts:

• In 2003 Fellowes Solicitors LLP were involved in the sale of a house by Leonie Hill who was then 78 and at the time instructions were taken was suffering from a progressive form of dementia;
• The proceeds of sale from the home went to Mrs Hill’s daughter. Mr Thorpe, Mrs Hill’s son, did not get a penny;
• Using his mother’s dementia as an advantage, he applied to the Court to become her guardian; and
• A claim was brought against Fellowes Solicitors LLP which, among other things, alleged that they failed to appreciate that the vendor was a vulnerable person and failed to enquire about her mental capacity.

The claim failed primarily on the basis that the solicitor had made contemporaneous attendance notes of her actions and also that she had asked Mrs Hill to attend her offices so that she could satisfy herself that Mrs Hill fully understood what was going on.  After that meeting, the solicitor’s attendance note recorded that Mrs Hill was “adamant” that she wanted to sell up and the proceeds of sale were to go to her daughter.  This was evidence that Mrs Hill understood what was about to occur. 

Mr Thorpe’s case was weakened further by medical evidence: a Dr Cockerell held the view that Mrs Hill might have been suffering from dementia in 2003, but that it would not have interfered with her decision making; and also that in any case a lack of capacity would not have been obvious. 

In dismissing a claim that Fellowes Solicitors LLP had acted negligently, Sharp J expressed that the claimant had failed to establish that a lack of capacity “would have been evident to a reasonably competent solicitor.”  Sharp J went on to add that “There is plainly no duty upon solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lack capacity.  Such a requirement would be insulting and unnecessary.”

Recent court decisions have confirmed that Part 36 of the CPR is a self-contained code governed by its own provisions.  General common law principles relating to offer and acceptance do not apply. 

Even more recently was the decision of C v D & D2 [2010] EWHC 2940 (Ch).  In this case, the question arose whether the claimant’s offer to settle – which was expressed to be open for acceptance for a specified period of time – was a Part 36 Offer. 

In C v D & D2 the claimant brought proceedings against the defendants for damages for the defendants’ alleged breach of contract in relation to a sale of land.  The claimant made an offer by letter headed “Offer to settle under CPR Part 36”, which included reference to the offer being open for 21 days from the date of the letter and the costs effects of a failure to accept the offer within the “Relevant Period”. 

The defendant did not accept the offer within the 21 days stipulated in the offer letter.  However, almost a year later (and three weeks before the trial) the defendant purported to accept the claimant’s offer.  The claimant was not prepared to settle on the original terms of its offer and applied for a declaration that the offer was no longer open for acceptance and had not already been accepted.   

The court held that the principle issue was one of construction.  The words of the offer letter needed to be construed against the rules contained in Part 36 of the CPR.   The court held that a time-limited offer cannot be a Part 36 offer.  Part 36 envisages that a Part 36 offer can be accepted at any time (see r.36.9(2)) unless or until it is withdrawn.  In comparison, a time-limited offer ceases to be a time-limited offer once the period for acceptance has expired.  The Court held that an important reason why a time-limited offer cannot be a Part 36 offer is because of the severe costs sanction against the defendant under CPR 36.14(3).  Under CPR 36.14(6) such sanctions do not apply if the claimant’s Part 36 offer has been withdrawn or the terms changed so as to be less advantageous to the offeree and the offeree has beaten the less advantageous offer.

CPR 36.2(2)(c) requires that a Part 36 offer specifies a “relevant period”.  This means a period of not less than 21 days within which the defendant will be liable for the claimant’s costs up to the date of acceptance of the Part 36 offer.  In this case, the period specified as the “relevant period” was a period of time during which the offer would remain open for acceptance.  The court held that although the claimant’s offer was not a Part 36 offer, it was nonetheless a perfectly valid time-limited offer which was not open for acceptance when the defendant purported to accept it. 

It is clear that in such cases as in C v D & D2 the offeror’s intention is not relevant.  It is the words of the offer letter that are important.  If it is the intention to make a Part 36 offer then it should:

• be in writing;
• state on its face that it is intended to have the consequences of Part 36;
• specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with CPR 36.10 if the offer is accepted;
• state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and
• state whether it takes into account any counterclaim.

If, for commercial practicality, a time-limited offer may be a better tactic, then such an offer should be made on a “without prejudice save as to costs” (or Calderbank) basis.   Up until 6 April 2007, CPR Part 36 required that an offer was expressed to “remain open for acceptance” for 21 days.  With this is mind, and in light of C v D & D2, practitioners would do well to review offers made or received to determine whether they should be withdrawn, revised or accepted. 

In Scout Association v Barnes [2010] EWCA Civ 1476, the Court of Appeal looked into the issue of balancing the risks of games played by the Scouts with their social value in determining a breach of duty. 

The brief facts were that the claimant, aged 13, hit his head against the wall when playing a game at a Scouts meeting called ‘Objects in the dark’.  The game involved the Scouts running around a room with objects in the middle and having to grab an object when the lights were turned off. 

At first instance, the High Court found that the Scouts Association had breached their duty to take reasonable care for the safety of the boy(s) in question.  It was held that turning off the lights added significantly to the risk of the game.  Consequently, the Scout Association appealed on the basis that the judge did not take into account the wider implications of the finding or the social benefits of the activity. 

The appeal failed.  Jackson LJ gave a dissenting judgment.  In his concluding remarks he said that “it is the function of the law of tort to deter negligent conduct and to compensate those who are victims of such conduct.  It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities”.  Smith and Ward LJJ felt that although the wider social value of the Scouting movement was beyond reproach, the wider benefit of the added “excitement” in this particular game did not outweigh the obvious risks, particularly where the cost of prevention was simply to leave the lights on. 

 The question of whether the social value of an activity was such that it carried an acceptable degree of risk was a question of judgment, degree and fact; this judgment was to be decided on a case by case basis.

In the last 12 months High Court figures show that the number of professional negligence claims have soared.

According to the figures there were 147 professional negligence actions in the High Court in 2008, which rose to 339 in 2009 (a 130.6% increase). 

Professional negligence claims against accountants rose from 0 in 2008 to 28 in 2009.

Surveyors and estate agents claims rose from 1 in 2008 to 17 in 2009.

Solicitors’ actions rose from 80 in 2008 to 210 in 2009 (a 162.5% increase).

Claims from other professionals rose from 66 in 2008 to 84 in 2009 (a 27.3% increase).

In the “age of austerity” it seems that professionals have seen themselves being first in the line of fire when unhappy clients are looking for someone to sue.

Perris v Holland and others [2010] EWCA Civ 840 confirmed that the principle established in Parker v Felgate (1883) 8 PD 171 is good law in that a testator does not have to have testamentary capacity at the time he executes his will if he knew that he was executing his will for which he has previously given instructions.  The distinction between testamentary capacity and knowledge and approval is that knowledge and approval does not require anything further than the ability to understand and approve choices and instructions that have already been made/given.  Full testamentary capacity is not necessary for knowledge and approval.

1) In 2007/08 the Bar offered 562 pupillages; in 2008/09 the number had falled to 464 (a 17.4% decrease) and in 2009/10 the number had falled further to 402 (a 13.4% decrease).  

2) In 2008/09 women made up 46 per cent of solicitors and 34 per cent of barristers, while BME professionals made up 13 per cent of solicitors and 16 per cent of barristers.