Seabrook v Adam

A Part 36 offer must be construed objectively in its pleaded and factual context. Its reference to liability may include causation where breach of duty is already admitted and the offer requires a concession in respect of the damages claimed.

In a negligence claim, actionable damage and its causal connection with the breach are elements of liability, rather than merely matters of quantification. A claimant does not better an offer which would have required the defendant to admit causation for all pleaded injuries where the judgment establishes liability for only one injury. The costs consequences in CPR Part 36 therefore do not arise.

The claimant brought a low-value personal injury claim arising from a road traffic collision. The defendant admitted breach of duty but denied that the collision caused either the pleaded neck injury or lower-back injury.

The claimant made two Part 36 offers to accept 90% of damages and interest to be assessed, conditional on an admission of liability. At trial he recovered £1,574.50 for the neck injury, but recovered nothing for the back injury because causation was not proved.

A district judge declined to give the offers Part 36 costs consequences. Her Honour Judge Walden-Smith dismissed the claimant’s appeal. The claimant appealed again, contending that he had bettered the offers because he recovered all of the damages awarded. The central issue was the proper construction and effect of the two offers.

1. Appeal dismissed unanimously. The claimant did not obtain a judgment at least as advantageous as either Part 36 offer. The defendant therefore bettered both offers and the claimant could not obtain the favourable costs consequences in CPR rule 36.17.

2. A negligence claim requires duty, breach, causation and recoverable damage. Actionable damage and the prescribed causal connection are elements determining liability, as distinct from the assessment of compensation. Thus a concession of liability in the circumstances of this case could not sensibly be confined to breach of duty, which had already been admitted.

3. The offers were to be interpreted by the reasonable reader against the pleadings. Each referred to 90% of the claim for damages and interest, with no division between the neck and back injuries. The first offer concerned the whole claim. Although the second was framed as an offer on the issue of liability, it likewise required an admission of causation for both pleaded injuries.

4. Acceptance would therefore have prevented the defendant from later contending that the accident caused no back injury at all. Since the trial judgment established liability only for the neck injury, the defendant achieved a result more advantageous than the proposed settlement.

5. The authorities concerning the scope of causation disputes after default or summary judgment did not assist. Their effect depended upon their facts and pleadings. In Part 36 cases, the decisive question remains the proper construction of the particular offer in its context.

6. The court added that, consistently with CPR rule 36.5(1)(d), an offer should state expressly whether it concerns the whole claim, part of it, or a precise issue. Where it concerns liability, it should make clear whether the proposed admission extends beyond breach of duty to causation of identified damage.

• Court of Appeal (Civil Division): Dismissed the claimant’s appeal and upheld the conclusion that the defendant had bettered both Part 36 offers.
• Norwich Combined Court Centre, Her Honour Judge Walden-Smith: On 6 November 2019, dismissed the claimant’s appeal from the district judge’s costs order.
• District Judge Reeves: By order dated 22 January 2019, declined to take the claimant’s Part 36 offers into account when determining costs.