In this month's cases round-up, Ed Duckworth looks at some further developments on Part 36 offers, how easy it is to change experts and whether a potential Claimant can sell their claim on.
Time’s up for lapsed offers under Part 36
C v D  EWCA Civ 646In this recent case, the Court of Appeal considered whether a time-limited offer could constitute a valid offer under CPR Part 36.
The case concerned breach of contract proceedings in relation to the 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". When the Defendant tried to accept the offer nearly a year later, the Claimant sought a declaration that the offer had lapsed and was no longer open for acceptance. The Defendant argued that a Part 36 offer was capable of being accepted at any time unless and until it was withdrawn and if not, the offer was not a valid offer under Part 36.
The Court of Appeal upheld the High Court’s decision that Part 36 does not allow for time-limited offers. However, the Court went on to consider whether the words “open for 21 days” could reasonably be construed as placing a time restriction on the offer. The Court held that it was entirely feasible to read the words as meaning that the offer would not be withdrawn within the 21 days referred to, as opposed to the offer lapsing once the 21 days had expired. The Court stated that the offer was clearly intended to comply with Part 36 and therefore, any ambiguities should be interpreted objectively so as to make the offer Part 36 compliant. On that basis, the offer was held not to be time-limited and was capable of acceptance by the Defendant.
The decision reinforces the principle established in Gibbon v Manchester City Council (2010) that a Part 36 offer may be accepted at any time until formally withdrawn. The decision also demonstrates that where an offer is presented as a Part 36 offer, the offer does not necessarily have to tick every box under Part 36 for it to be regarded by the Courts as Part 36 compliant. As a result, parties who present offers as Part 36 offers should be fully aware of the consequences. It would also be wise to raise any ambiguity as to whether an offer is Part 36 compliant or not sooner rather than later to avoid any unexpected costs consequences where the offer is accepted out of time.
‘Expert shopping’ – two experts for the price of one
Edwards-Tubb v JD Wetherspoon PLC  EWCA Civ 136An important decision from the Court of Appeal could mean that all expert reports commissioned in relation to a claim must be disclosed whether they are favourable or not.
In this case, the Claimant obtained a medical report from expert A, having nominated that expert as one of three to be instructed with the Defendant under the personal injury pre-action protocol. The Claimant did not disclose this report and when the Particulars of Claim were served, they sought to rely on the report of an alternative expert in the same field of expertise (expert B) who was not one of the earlier nominated experts. This, together with the fact that expert B’s report referred to the Claimant having previously been seen by an orthopaedic surgeon for a medico-legal consultation, alerted the Defendant to the fact that the Claimant had obtained another expert report. The Defendant applied for disclosure of expert A’s report on the basis that disclosure ought to be a pre-condition to the Court granting permission for the Claimant to rely on expert B’s report under CPR 35.4.
The case went to the Court of Appeal where it was decided unanimously that the condition should be imposed to prevent “expert shopping”. The Court stated that “once a party has embarked on the pre-action protocol procedure of co-operation in the selection of experts, there seems to be no justification for not disclosing an expert report obtained from an expert who has been put forward by that party as suitable for the case, has been accepted by the other party, and has reported”.
The decision is potentially far reaching in personal injury claims, though its impact on clinical negligence litigation is yet to be seen. The Court of Appeal placed significant weight on the fact that the parties had embarked on the “pre-action protocol procedure of cooperation in the selection of experts”, whereas this is not something generally undertaken under the pre-action protocol for the resolution of clinical disputes. Although expert reports are often sought by Claimants to assist in drafting the Letter of Claim, presumably such reports would not be caught by the decision as they are obtained before the procedure under the pre-action protocol has commenced. However, where limitation pressures mean that expert reports are obtained after the Letter of Claim is served, could the Court apply a similar condition? The answer remains to be seen, but given the Court’s approach to discouraging expert shopping, there may be merit in applying for disclosure of a report where it appears a party has obtained a report which they have not disclosed.
Can you buy a cause of action?
Jennifer Simpson (as assignee of Alan Catchpole) v Norfolk & Norwich University Hospitals NHS Trust (March 2011, as yet unreported)
Mr Catchpole, contracted MRSA following his admission to hospital for surgical removal of a penile prosthesis due to infection. He made a full recovery and decided not to pursue a claim himself. However, he ‘assigned’ his cause of action to Mrs Simpson who paid him £1 to take over his role as Claimant in the case. Mrs Simpson’s late husband had also been diagnosed with MRSA whilst being treated for cancer at the same hospital and she had since campaigned to raise the issue.
Mrs Simpson’s claim was refused by two lower courts and the case is currently being considered by the Court of Appeal. At the hearing in March, Mrs Simpson argued that there was no principle of law which prevented victims of negligence assigning their case to third parties, and even if there was, such a principle was “anachronistic” in light of current attitudes to access to justice. It was suggested that the buying-up of cases was “likely to assist, rather than obstruct, public justice” and there would be real merit in a system that relieved injured people of the risks and anxieties involved.
Whilst the Court of Appeal indicated that there could be circumstances where such a right would be beneficial, it also recognised the risk of such claims being bought and sold like commodities for a profit. The Court of Appeal has reserved Judgment for a later date.
The potential impact of this case could be worrying. The
Court has already alluded to the possibility of creating a market
for buying and selling claims which would add to our litigation
culture and increase pressure to settle claims. It is also
difficult to see how the public would benefit from the Courts
adopting such a policy. The cost of pursuing such claims is
likely to be higher given the extra party involved. The idea
that the injured party will be relieved of the stress involved in
bringing the claim themselves is also misconstrued.
Presumably they will still be heavily involved in the claim as they
will need to attend medical examinations with experts, provide
witness statements and possibly give evidence at trial. An
update will be given when Judgment is delivered in due