Kore v Brocklebank

A settlement offer is construed objectively from the documents and correspondence, rather than from the parties’ undisclosed intentions. Where only one prospective claimant has intimated a claim, an offer expressed to settle the whole of that claim does not ordinarily compromise separate claims of other dependants. Each dependant has a separate claim in respect of losses falling within the Fatal Accidents Act 1976. A defendant may settle one claimant’s claim before proceedings are commenced or served on behalf of other claimants. Acceptance of an offer settling the individual claimant’s whole claim prevents that claimant from pursuing it later, while the claims of other dependants remain viable.

The claimant’s son died in a road traffic accident caused by the negligence of the deceased driver, whose personal representative was the defendant. The claimant’s solicitors initially intimated claims for dependency, bereavement and funeral costs. The defendant made a Part 36 offer expressed to concern the whole claim, with details relating principally to funeral expenses. The claimant accepted the offer, later asserting that acceptance concerned funeral expenses only and that dependency claims remained.

HHJ Sykes held at first instance that acceptance compromised the whole Fatal Accidents Act 1976 claim and dismissed it. On appeal, the claimant alternatively argued that any compromise covered only his own claim, not those of other alleged dependants. The central issue was the scope and effect of the accepted offer.

1. New point on appeal. The claimant’s alternative construction had not been adequately pleaded or argued below. Nevertheless, the court exercised its discretion to consider it because the issue could be resolved from the documents, without further evidence. The subjective intentions of the solicitors were not legally material.
2. Separate claims. The procedural provisions of the Fatal Accidents Act 1976 did not alter the substantive position that each dependant had a separate claim. The court relied on Mullholland v McCrea [1961] NI 135 and Dodds v Dodds [1978] 2 WLR 434. A defendant could therefore settle claims, or distinct heads of claim, intimated by one or more prospective claimants before proceedings were commenced or served for others.
3. Construction of the offer. The letter of claim identified only the claimant. The subsequent correspondence likewise referred only to him in the singular. The offer’s reference to the claimant as administrator was erroneous and did not establish that claims of other dependants were included. Its wording concerning bereavement damages and dependants was obscure and did not warrant treating acceptance as a representation that no other dependants existed.
4. The offer was expressed to settle the whole of the claim then intimated, namely the claimant’s individual claim. Acceptance therefore compromised that claim but did not extend to claims which might be brought by other dependants.
5. The claimant could not pursue his own claim after accepting the offer. That claim was struck out. The claims of the other alleged dependants remained viable. The remaining grounds of appeal were academic and were not determined. Costs were left for agreement or further written representations.

1. High Court (Queen’s Bench Division): Allowed the appeal to the extent that the accepted offer did not compromise the claims of the other alleged dependants. The claimant’s own claim was struck out as compromised, while the other claims remained viable.
2. County Court, before HHJ Sykes: On 13 November 2018, held that acceptance of the Part 36 offer settled the claim under the Fatal Accidents Act 1976 and dismissed it.