When it comes to important legal decisions, the head rules the heart
As so often in life and the law, the head rules the heart when it comes to important decisions. This applies to judges faced with very difficult decisions to make, often for very deserving and seriously injured claimants for whom they have tremendous sympathy. In the recent case of MRA .v. The Education Fellowship Ltd (aka Rushden Academy) Master McCloud of the High Court decided she was duty-bound to follow the strict approach laid down in the Civil Procedure Rules, even though the autistic claimant, who was sexually abused as a child by the defendant, would receive substantially lower compensation as a result.
The defendant made the claimant a ‘well-judged, … deliberately generous’ offer of compensation, seeking to settle the claim at a relatively early stage. The offer was what is termed a Part 36 Offer, by which if a claimant does not go on to beat the offer in court proceedings, they take responsibility for the defendant’s legal costs from that point onwards.
Sadly for the claimant in this case, he ended up failing to beat the offer. The court therefore decided, following the rules, that because he should have accepted the defendant’s early offer, he should bear the serious cost penalty of paying the defendant’s additional legal costs out of the compensation he was awarded. The court decided this rule should apply in this case, even though there was great sympathy for the claimant and everything he had suffered.
The judge was satisfied that the offer was “not oppressive or ambushing” and there was sufficient medical and other evidence available to allow the claimant (on legal advice) to make a risk-based reasonable evaluation as to whether to accept the offer. Specifically, Master McCloud decided there was sufficient material available as to prognosis i.e. what most likely lay ahead for the claimant in terms of ongoing problems and lifelong associated needs and losses.
Some might find the rules and the decision harsh, but the judge appears to have taken a balanced and carefully considered view. Defending insurers often like to make relatively early offers, it seems, aiming to tempt claimants to conclude the case before the costs bill gets too high. The Part 36 Offer is an important weapon in the defendant’s arsenal. It can really cause a claimant’s team to sit up and take notice. What seems particularly important in this case is that the judge was satisfied the offer was not made too early, that at the time there was sufficient evidence available to enable a reasoned decision to be made.
In the writer’s experience, it is so important in every claim to follow the evidence and try always to view the case through the eyes of a judge: always with a professional distance.George Ide