There have been two recent cases in the Court of Appeal which may be important
to personal injury practitioners.
On the 14th March 2002, they gave judgment in favour of a claimant
who had lost his claim for damages arising out of his dive into a lake in a country
park. The judge who tried the action dismissed the claim because he felt guided
by the recent case of Darby v National Trust. The Court of Appeal reversed
that conclusion, thus allowing the claimant to recover compensation. Perhaps the
most significant point is the Court of Appeal's emphasis that these cases are
"fact sensitive" (that phrase coming from Lord Steyn in Jolley).
On the 21st March 2002, the Court of Appeal gave guidance on a problem
which has been troubling claimants' lawyers for some time. When you decide to
make a Part 36 offer on liability only, is it acceptable to offer to accept 100%,
or 99.9% or 99%, on the basis that you have an overwhelmingly strong case, and
the defendant should admit liability? The actual percentage in question was 95%,
and the trial judge had dismissed the claim for indemnity costs out of hand, saying
that no court would ever apportion liability between two drivers (this case involved
a crash on a narrow country road) 95/5. That, of course, demonstrated a complete
misunderstanding of the whole process of valuing the risk of an adverse finding,
and then applying that risk to the level of deduction. The Court of Appeal allowed
the appeal, confirming that a 95% Part 36 offer, in the right circumstances,
will be effective to entitle you to indemnity costs.
21 March 2002
Bill Braithwaite Q.C.