What to do when your opponent makes a strategic early Part 36 Offer in settlement of a Personal Injury claim?
In a personal injury claim either the injured person or the compensator (normally an insurer) can at any time make an offer to settle an issue or the whole claim. A frequent form of an offer is as a Part 36 Offer.
What is a Part 36 Offer?
A Part 36 Offer is named as such because it is found within Part 36 of the Civil Procedure Rules 1998 and is a formal offer in settlement of an issue or the whole claim.
It allows one party to make to another an offer which is termed open for acceptance for a period of 21 days.
In this scenario we look at a Part 36 Offer made by a compensator to an injured party which, if rejected by the injured party, can have consequences if the injured party does not do better than the offer made. In particular the following:-
- First, if the injured party does not beat the offer, they would be in a less favourable position than they would, had the offer been accepted. This could mean they receive less compensation.
- Second, the injured party cannot recover, from the compensator, their own legal costs after the 21-day acceptance period has expired.
- Third, the injured party becomes liable for the compensator’s legal costs from the last day the offer could have been accepted.
How do you tackle a Part 36 Offer when made?
We acted for a client who was a middle seat rear passenger in a car which was involved in a collision with an oncoming vehicle. Responsibility rested with a driver of one of the vehicles involved therefore our client’s claim would succeed. The defendant insurer’s refused to participate in rehabilitation instead making an interim payment to our client to leave her to pay for rehabilitation as she saw fit and subsequently early on in the claim the Insurer made a Part 36 Offer in the sum of £200,000. This time pressured offer was also made only 10 days before the Christmas break, with the knowledge that most solicitors’ offices close during this period.
The defendant insurer, by making a monetary Part 36 Offer to the injured party at an early stage, hoped to secure certainty over what the claim was likely to be worth but also place our client at a disadvantage anticipating that no expert medical evidence might have been available.
Our client had suffered multiple injuries, including the following:-
- Fracture to Cervical Spine C5
- Fracture to the Thoracic Spine at level T1, T2 and T8
- Fractured Sternum
- Fractured ribs
- Liver laceration (10cm)
- Spleen laceration
- Traumatic bowel perforation requiring laparotomy
- Pulmonary embolism
- Multiple scars to torso including one at 15cm and another at 24cm in length
- Adjustment Disorder
Notwithstanding the serious nature of the injuries our client had done remarkably well by returning to work and her personal situation was now similar to how it was before the accident.
We fortunately already had obtained a copy of our client’s medical records but to enable us to properly value the Part 36 Offer we required expert medico legal reports. In the usual course it can take many months to organise expert reports in terms of securing appointments and waiting for reports. However, we tenaciously contacted a number of leading experts who agreed within 10 days of instruction to have assessed our client and prepared for us an expert report. This enabled reports in the following expert disciplines to become available within the 21 day offer period:-
- Orthopaedics
- General Surgery
- Plastic Surgery
- Neuropsychiatry
Whilst waiting for the expert reports we used the time well to take from our client a detailed witness statement as well as witness statements from members of her family to support the injury claim and assist with the valuation process.
Once the expert evidence was available, we finalised a draft schedule of loss setting out what our client may potentially claim from the Defendant Insurer in settlement of the claim. This was developed with our client to enable us to value the claim.
For the sake of completeness, we booked a conference with an experienced Barrister to meet with our client in person to go through all of the work undertaken on the case and to assess the adequacy of the Part 36 Offer made. This gave our client an independent opinion.
The above work was completed keeping our client always at the centre of everything we do, ensuring they have the best information and advice available to base their decision upon whether to accept the Part 36 Offer made.
Matthew Claxson and Carole Carr, an experienced paralegal, in the Personal injury team, had conduct of the above case. The independent barrister was Mr David White of 12 King’s Bench Walk.
Wrapping up
In summary, you should expect solicitors who specialise in personal injury to take such steps to enable a client to make informed decisions and provide instructions, irrespective of Defendants making early Part 36 Offers. Indeed, in this case our client was pleased to have the breadth of evidence available and our Barrister remarked that it was extremely useful to have the expert reports upon which to base his advice.
We are increasingly seeing insurer’s investing less in rehabilitation in favour of making substantial early Part 36 Offers in settlement. A client should have a reasonable expectation to entrust their solicitors to obtain the best possible evidence and give high quality advice upon which the client can form a decision in response to a Part 36 offer given the cost consequences. At Moore Barlow we work tirelessly for our clients to ensure this is the case.
Matthew Claxson – Personal injury partner
How Moore Barlow can help
If you have suffered a Serious Injury or a bereavement then contact our Serious Injury Team on 0800 157 7611 or claim@moorebarlow.com. Our specialists are ranked as a top Tier 1 Serious Injury Team by the independent legal directories’ Legal 500 and top Band 1 by Chambers & Partners.
