In high-value cases, it is often a tactic by opponents to make quite high-level offers of settlement early and this is common in high-value cases concerning a minor. When you are unsure as to the level of disability, which is particularly difficult when the client is a minor, the question, therefore, falls how you assess a Part 36 Offer in these circumstances?
From a practical point of view, advice from Counsel is obviously justified so a second opinion is sought and to assist in protecting protection from any ATE policy.
Another good tactic would be to ask the opponent for the evidence that they are using to value the claim. If the case involves a minor, it would be unusual for the Court to restrict the child’s damages unless full disclosure was given at the time, which would be a good point to raise with the opponent.
Relevant case law
In terms of case law, a relevant case to consider would be SG v Hewitt [2012] EWCA Civ 1053 which provides that where it is uncertain as to the prognosis in the case of a disability the normal consequences do not apply when the prognosis is uncertain. To that extent, it would be appropriate to raise this case with the opponent and request full disclosure to enable you to value the case. If of course, they cannot provide evidence, that would be a good argument later that normal costs consequences should not apply in accordance with CPR 36.17(5) and this Judgment.
Another helpful Judgment would be JMX (A Child) v Norfolk Hospitals NHS Foundation Trust [2017] EWHC 3082 (QB) which states that there are five express considerations in relation to CPR 36.17(5) or that whether there is an exception to normal Part 36 consequences:
a) The terms of the offer;
b) The stage in proceedings when the offer is made;
c) The information available to the parties at the time the offer was made;
d) The conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated;
e) Whether the offer was a genuine attempt to settle the proceedings.
To that extent the aforementioned case is useful to quote in an attempt for full disclosure to be provided or alternatively as a marker in the file that you can later come back to should, you wish to later rely on CPR 36.17(5) for factors outside of your control.
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