Summary of Recent Cases – Civil Procedure

Mesothelioma claim struck out under the Limitation Act and no reason for the Court to exercise its s.33 discretion

Ivan Hinchliffe (Executor of the estate of Aubrey Whitehead, Deceased) v Corus UK Ltd, QBD, 22/11/10

Roger ter Haar QC (sitting as a judge of the High Court) held that a claim for personal injury following alleged exposure to asbestos was statute barred, as by 2002 the deceased Claimant knew he had a ‘significant injury’ which he suspected had been caused due to exposure of asbestos as part of his employment. The court would not exercise its discretion under s.33 of the Limitation Act 1980. The Claimant’s solicitors’ conduct of the claim was marred by substantial periods of inactivity, which was particularly unfortunate given the Claimant’s age. Given the Claimant had now died, the inability of the Defendant to test his evidence and challenge inconsistencies between his statements, whether by taking of interrogatories, taking evidence on commission or via cross examination at court amounted to insurmountable prejudice.

A time limited offer to settle was not a CPR Part 36 Offer

C v (1) D (2) D2, ChD, 16/11/10

Warren J held that for an offer to be a Part 36 Offer, it must be entirely in conformity with the Pt 36 provisions and not contain features inconsistent with it. Though an offer was made by the Claimant on a letter headed “Offer to settle under CPR Part 36” it was a time-limited to a period of 21 days. Time-limited offers were inconsistent with the provisions of Part 36 and therefore the Claimant’s offer could not be accepted after 21 day period expired. Rule 36.9(2) indicated that a Part 36 was concerned with an offer which was at least capable of being withdrawn and not one which would come to an end according to its own terms. It had not been envisaged by the author of the letter that the offer could be accepted after 21 days. Approving Gibbon v Manchester City Council (2010) EWCA 726, the court re-emphasised that CPR 36 was a self-contained code.

December 25, 2010 · Editorial Team · Comments Closed
Posted in: Cases