Costs News

08 January 2020
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Offer acceptance applied only to accident victim’s father and not other dependants

The acceptance of a part 36 offer applied only to the father of a teenager who died in a car crash and not to potential claims of other dependants, the High Court has ruled.

Mr Justice Turner said it was “perfectly open” to a defendant insurer to settle claims under the Fatal Accidents Act 1976 by “one or more” prospective claimants before proceedings were launched by others.

The High Court heard in Kore v Brocklebank [2019] EWHC 3491 (QB) that Arpad ‘Peter’ Kore died in November 2014. He had been a passenger in a car negligently driven by Barosz Bortniczak, who also died.

Mr Kore’s father, also called Arpad, launched a claim against Lee Brocklebank, personal representative of the driver, on behalf of his son’s estate and dependants. This was for dependency, bereavement and funeral costs.

The defendant insurer made a part 36 offer of £12,200 in relation to the “whole of the claim”, which was accepted. The claimant’s solicitors later sent a follow-up email saying that the acceptance referred only to funeral expenses and not dependency.

The claimant went on bring a claim under the Fatal Accident Act not only on his behalf, but on behalf of the deceased’s mother and two sisters.

The defendant argued that the whole of the claim under the Fatal Accidents Act 1976 had been the subject of a binding contract of compromise, and Her Honour Judge Sykes ruled that it had been settled by accepting the part 36 offer.

On appeal, the claimant submitted that only the father’s personal claim fell within the scope of the part 36 offer.

The judge said the original letter of claim referred to the claimant alone as client of the solicitor, and he was not persuaded by the defendant’s argument that it was ambiguous.

“On the face of it, only one claimant is identified. In the correspondence which follows, every letter from the claimant solicitor refers only to the claimant in the singular.”

Turner J said it was not in dispute that section 2(3) of the Fatal Accidents Act, which prevents more than one action being launched on the same subject matter, did not apply directly to the appeal because no action had been commenced at the time the part 36 offer was accepted.

He said the procedural requirements of the Act did not “operate so as to undermine the substantive position in law”, that each dependant had a separate claim.

“Accordingly, it is perfectly open to a defendant to settle claims (or distinct heads of claim) intimated by one or more prospective claimants in respect of losses falling within the scope of the Act before proceedings are commenced or served on behalf of those whose claims have not been so settled.

“This, in my view, is precisely what happened in this case. The offer was expressed to be in respect of the whole of the claim but the only claim which had been raised in correspondence was that of the claimant himself.

“It follows that I am satisfied that the acceptance of the offer was, on the face of the documentation, limited to the claimant's individual claim in its entirety but did not extend to claims which may or may not have followed from other alleged dependants.

“When, therefore, the claimant attempted thereafter to bring these proceedings, he was not entitled to do so on his own behalf but only in his capacity as administrator of the estate on behalf of other alleged dependants.

“In consequence, his own claim falls to be struck out on the basis that he accepted the part 36 offer which, on its face, related to the whole of his claim. The claims of the other dependants, however, remain viable.”

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