Flynn v Scougall

This appeal against the judgment and order of HH Judge Bowers sitting in the Newcastle-upon-Tyne County Court on 14th November 2003 is a second appeal, for which Brooke L.J. gave permission on 21st November 2003. It raises an important point of practice relating to a defendant’s payment into court under Part 36 of the Civil Procedure Rules.

The facts may be shortly stated. On 20th September 1999, the claimant, a firefighter, was injured when the fire engine in which he was travelling was struck by the defendant’s vehicle. The claimant’s personal injury claim arising out of this accident was issued on 14th August 2002. It was supported, as the rules require, by a medical report in which Professor Gregg expressed the opinion that the accident had accelerated the claimant’s retirement by five years. On 12th October 2002, the defendant served a defence admitting liability.

On 3rd January 2003, those acting for the defendant instructed Mr Pinder to report on the claimant’s injuries. On 13th January 2003, the court gave directions which included permission to rely on a report by Mr Pinder provided that it was disclosed by 28th February 2003. The claimant’s solicitors agreed to extensions of time for the service of this report, the second of which provided that it should be served by 20th March 2003. On 14th March 2003, the defendant made a payment into court of £24,500 net of recoverable benefit of £2,186.28.

Those advising the defendant received Mr Pinder’s report on 20th March 2003. This included his opinion that the accident had accelerated the claimant’s symptoms by no more than three months. The defendant’s solicitors regarded this as affecting the amount of the payment into court. They accordingly issued an application that day for an order that £14,500 of the money in court should be paid out to the defendant’s solicitors. This would reduce the amount in court to £10,000. On the same day, the defendant’s solicitors sent a letter and fax to the claimant’s solicitors informing them of the application to the court and saying that the original Part 36 payment into court of 14th March 2003 was withdrawn. They said that the intention now was to make a reduced Part 36 payment into court of £10,000.

On 25th March 2003, before the hearing of the defendant’s application to reduce the amount in court, the claimant gave notice accepting the original Part 36 payment into court. This was within 21 days of the making of that original payment.

On 8th April 2003, Deputy District Judge Mather allowed the defendant’s application to reduce the sum in court to £10,000 and ordered payment out of £14,500 to the defendant’s solicitors. On 21st May 2003, District Judge Large set aside the order of 8th April. He ordered payment out to the claimant’s solicitors forthwith of the £10,000 in court, and ordered the defendant to pay to the claimant’s solicitors the additional £14,500 with interest from 25th March 2003. He concluded that a Part 36 payment must remain open for acceptance for 21 days unless within that time and before acceptance the court gives permission to reduce it. The defendant’s original payment was made upon a considered decision. In his view, the defendant should have made a without notice application and applied to have it dealt with as urgent business.

The defendant’s appeal against this decision was heard by Judge Bowers on 5th September 2003 and his order is dated 14th October 2003. He allowed the appeal and set aside the order of District Judge Large. He gave the claimants until 4th November 2003 to accept, if they chose, the £10,000 in court.

The essence of Judge Bowers’ decision was that he considered it to be unjust to allow a claimant to accept a payment into court when he knows, as in this case, that the defendant is withdrawing the offer which the payment constitutes and has made an application to the court for permission to do so. The judge considered that, where a defendant issues an application to reduce a payment into court within the period for acceptance and before it has been accepted, there is imposed automatically a stay or suspension of the time for acceptance of the payment into court until after the hearing of the defendant’s application.

The judge recorded the claimant’s argument that the defendant had chosen to seek the benefit of a Part 36 payment knowing that the medical report from Mr Pinder was due to be delivered within a few days. He could not argue that the contents of the report represented a change of circumstances sufficient to justify a reduction in the sum in court. The judge did not agree. Bearing in mind that the payment was made on the date when the defendant had hoped to be able to serve the report, the judge considered that the contents of Mr Pinder’s report constituted good and sufficient reason for the order originally made by the deputy district judge. The claimant appeals against this decision.

The first issue in this appeal turns on the proper construction of Part 36 of the Civil Procedure Rules. Part 36 must be looked at in the light of the overriding objective in Part 1. The rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly (rule 1.1(1)). The court must seek to give effect to the overriding objective when it exercises any power given to it by the rules or when it interprets any rule (rule 1.2). The parties are required to help the court to further the overriding objective (rule 1.3).

Part 36 contains rules about offers to settle and payments into court, and about the consequences where an offer to settle or payment into court is made in accordance with Part 36 (rule 36.1(1)). Part 36 does not prevent a party from making an offer to settle in whatever way he chooses; but if such an offer is not made in accordance with Part 36, it will only have the consequences specified in Part 36 if the court so orders (rule 36.1(2)). As is well known, broadly speaking the Part 36 consequences relate to payments or awards of costs and interest. If an offer to settle within Part 36 is accepted, that effects a compromise. If it is not accepted, there is no compromise and the action proceeds. There are then costs advantages to the party who made the offer, if the outcome of the litigation is less favourable to the offeree than the terms of the offer.

Part 36.2 distinguishes between “a Part 36 payment” and “a Part 36 offer”. Each of these is referred to in that rule as an offer. A Part 36 payment is thus an offer made by way of payment into court. A Part 36 payment may only be made after proceedings have started (rule 36.3(2)).

Rule 36.3 provides that, subject to exceptions, an offer by a defendant to settle a money claim will not have the consequences set out in Part 36 unless it is made by way of a Part 36 payment. The exceptions relate to an offer made by reference to an interim payment (rule 36.5(5)) and a claim subject to deduction of benefits under the Social Security (Recovery) of Benefits Act 1997 where the defendant has applied for, but not received, a certificate of recoverable benefits (rule 36.23). The policy of rule 36.3 evidently is that a defendant wishing to make an offer to settle a money claim within Part 36 should do so in a way which enables the claimant to accept the offer in the knowledge that the settlement money is securely available. Part 36 payments are obviously not available for non-money claims nor for offers to settle by claimants, who by definition are not offering to make any payment.

A defendant who makes a Part 36 payment must file with the court a Part 36 payment notice stating the matters required by rule 36.6(2). A Part 36 payment is made when written notice of the payment into court is served on the offeree (rule 36.8).

A Part 36 offer or Part 36 payment is accepted when notice of its acceptance is received by the offeror (rule 36.8(5)). A claimant may accept a Part 36 offer or a Part 36 payment made not less than 21 days before the start of the trial without needing the court’s permission, if he gives the defendant written notice of acceptance not later than 21 days after the offer or payment was made (rule 36.11(1)). If a Part 36 offer or Part 36 payment relates to the whole claim and is accepted, the claim will be stayed (rule 36.15). Where a Part 36 payment is accepted, the claimant obtains payment out of the sum in court by making a request for payment in the appropriate practice form (rule 36.16).

Thus, a Part 36 payment by a defendant is a payment into court constituting an offer to settle a claimant’s claim or that part of it to which the payment is expressed to relate. If the offer is made not less than 21 days before the start of the trial, the claimant may accept the payment without the court’s permission and obtain payment out of the sum in court without judicial intervention.

Rule 36.6(5) provides:-

“A Part 36 payment may be withdrawn or reduced only with the permission of the court.”

It is this provision which is central to the present appeal.

A Part 36 offer has many of the same characteristics as a Part 36 payment. Its form and content are prescribed by rule 36.5. In particular, rule 36.11 and 36.12 provide that a Part 36 offer made not less than 21 days before the start of the trial may be accepted without needing the court’s permission. Differences include that a claimant as well as a defendant may make a Part 36 offer; and a defendant may make a Part 36 offer in relation to a non-money claim (rule 36.4). Another difference between a Part 36 payment and a Part 36 offer is that a Part 36 offer may be withdrawn at any time before acceptance even within the 21 days after the offer is made. There is no equivalent for a Part 36 offer of rule 36.6(5). Indeed rule 36.5(8) provides that if a Part 36 offer is withdrawn it will not have the consequences set out in Part 36. In Scammell v. Dicker [2001] 1 WLR 631, this court held that Part 36 did not exclude the general law of contract that an unaccepted offer can be withdrawn. All that it does is to lay down the requirements that are needed to attain the consequences of making a Part 36 offer.

If a Part 36 offer or Part 36 payment is made more than 21 days before the start of the trial, in uncomplicated circumstances it remains open for acceptance without the court’s permission for 21 days after the offer or payment was made. After that 21 days, the effect of the various provisions in Part 36 is that it may not be accepted without the court’s permission, unless the parties are agreed as to the costs and other consequences of doing so. Thus, the problem which this appeal illustrates can only arise within 21 days after a Part 36 payment is made.

The claimant contends that the judge in the present case misconstrued the relevant provisions of Part 36. Mr Freedman on behalf of the claimant submits that the issues are whether a claimant can be prevented from accepting a payment into court within the period of 21 days following notice of payment in when he is put on notice that the defendant wishes to withdraw some of the money in court and where the defendant has issued an application seeking permission to do so. Was the judge correct in his decision that, if a defendant issues an application for permission to reduce or withdraw a payment into court within the period for acceptance but before it is accepted, there is imposed automatically a stay or suspension of the time for acceptance of the payment into court until after the hearing of the defendant’s application?

Mr Freedman submits that rules 36.6(5) and 36.11(1) are clear and unambiguous. The claimant was entitled to accept the payment into court on 25th March 2003. The offer which it constituted had not at that time been withdrawn and it remained available for acceptance, even though the defendant had applied to the court for permission to reduce the amount of money in court and had given notice of this application to the claimant’s solicitors. It is submitted that this construction is not unjust. The defendant made a commercial decision to make the payment into court before receiving Mr Pinder’s report. The defendant was prepared to take the risk that this payment might subsequently appear to be too great and sought to obtain the advantages of a Part 36 payment which was subject to the relevant provisions of Part 36. These included the clear stipulation that the Part 36 payment might be withdrawn or reduced only with the permission of the court. It is submitted that, if the judge had correctly construed this provision and the general structure of Part 36, he would not have concluded that it was unjust for the claimant to be permitted to accept the money in court.

There is a Respondent’s Notice which seeks to uphold the judge’s decision on different or additional grounds. The notice contends that a Part 36 payment is a particular type of Part 36 offer, and that all the general rules which apply to Part 36 offers apply also to Part 36 payments. Rule 36.6(5) requires the court’s permission to withdraw or reduce the actual money in court, but does not restrict the defendant’s right to withdraw or reduce the offer at any time before acceptance. It is contended that to treat Part 36 payments differently from Part 36 offers would create unsatisfactory and unnecessary anomalies. A defendant in a money claim is at a disadvantage in comparison with a defendant in a non-money claim and also with a claimant. There is no equality of arms.

Mr Tudor-Evans on behalf of the defendant submits that Part 36 offers are new procedural devices created by the Civil Procedure Rules, although deriving from Calderbank offers under the previous regime. A claimant can make a Part 36 offer to settle any issue in the proceedings including an offer to settle his money claim for a stated amount. A defendant can make a Part 36 offer to settle liability or non-money claims, but cannot make a Part 36 offer to settle a money claim for a fixed sum. He has to make a Part 36 payment. Scammell v. Dicker establishes that a Part 36 offer may be withdrawn at any time before acceptance. Part 36 offers are subject to contractual principles relating to offer and acceptance. Mr Tudor-Evans submits that the essential nature of a Part 36 payment is that it is an offer open for acceptance by a claimant. There is no reason why uniquely a Part 36 payment cannot be withdrawn within the 21 day period and why it should not be essentially contractual in nature. It is therefore submitted that Part 36 should be construed to allow a defendant to withdraw a Part 36 payment within the 21 days during which it is open for acceptance. This, it is suggested, can be achieved by construing rule 36.6(5) to mean that a Part 36 payment can only be withdrawn or reduced with the court’s permission once it has become effective. Mr Tudor-Evans’ alternative construction is that a defendant can withdraw the offer comprised in a Part 36 payment at any time, but must obtain the court’s permission to remove the money from court. It is submitted in the further alternative that the judge’s solution is correct as a mechanism to avoid injustice and lack of equality of arms. It is suggested that the fallacy of the claimant’s submission is indicated by the concession, correctly made, that if a defendant were to make an obvious mistake in a Part 36 payment, the court must retain the power to intervene to correct the mistake. This would occur, for instance, if a defendant intended to make a Part 36 payment of £10,000, but erroneously paid £100,000 into court.

The Civil Procedure Rules are a new procedural code and, generally speaking, cases decided under the former Rules of the Supreme Court are not helpful in interpreting the new code. Nevertheless, the essential structure of the rules relating to payments into court did not change with the Civil Procedure Rules. Some reference to earlier authority is therefore appropriate.

Part 36 contains a structure whose main purpose is to enable and encourage parties to litigation to reach sensible and economic compromises. As Devlin LJ said in Martin French v. Kingswood Hill [1961] QB 96 at 103, “a payment into court is simply an offer to dispose of the claim on terms. If the defendant were free to formulate the terms himself, he could make his offer in whatever form he liked. But if he seeks to effect his compromise under the rules which permit a payment into court, he must make his offer according to the rules.” The offer is then subject to the terms of the relevant rules.

The rules use the language of offer and acceptance and contain provisions relating to the withdrawal of both a Part 36 payment and a Part 36 offer. Further, if an offer within Part 36 is accepted in accordance with Part 36, a compromise results. But, as Goddard LJ said in Cumper v. Pothecary [1941] 2 KB 58 at 67, “there is nothing contractual about payment into court. It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, does constitute a contract.” This, in my view, remains the position with Part 36 payments. This is not, I think, inconsistent with the decision in Scammell v. Dicker, which concerned Part 36 offers for which the analogy with contract is closer. Insofar as Henriques J may have expressed a different view in Chainrai v. Boston (11^th July 2002) at page 15 of the transcript, I am inclined to disagree. The facts and issue in that case were most unusual and his view on this point did not, I think, dictate the result.

Whether or not the structure of Part 36 payments is to be characterised as contractual, the issue in the present appeal, as in Scammell v. Dicker, concerns withdrawal, and Part 36 has express provisions relating to withdrawal of both a Part 36 offer and a Part 36 payment. A defendant who wishes to make a Part 36 payment has to make an offer to which the relevant provisions of Part 36 are attached. One of these is that a Part 36 payment may be withdrawn or reduced only with the permission of the court (rule 36.6(5)). In my judgment, this provision is clear and it relates to the offer which the Part 36 payment comprises. I reject the submission that the offer and the payment into court are separate and that rule 36.6(5) relates to the latter but not to the former. On the contrary, the defendant has chosen to make an offer by means of a Part 36 payment with an attribute that it may be withdrawn or reduced only with the court’s permission. By contrast, the provision which relates to the withdrawal of a Part 36 offer is unqualified.

By rule 36.11, a claimant may accept a Part 36 payment not later than 21 days after the payment was made without the court’s permission. The normal expectation, implicit in the rules, is that the offer which the payment comprises will remain available for acceptance throughout that period. The problem which this appeal raises could not arise after the expiry of the 21 days. A claimant who then wishes to accept a Part 36 payment and a defendant who wishes to withdraw or reduce it each have to apply to the court for permission, and each have the opportunity of submitting that the other should not be given permission.

The rules do not spell out what may happen when equivalent conflicting wishes of a claimant and defendant arise within the 21 days. On the face of it, rule 36.11 entitles the claimant to accept a subsisting Part 36 payment without permission within the 21 days, even though he knows that the defendant wants to withdraw or reduce it. Equally on the face of it, rule 36.6(5) entitles the defendant to apply within the 21 days for permission to withdraw or reduce the Part 36 payment and empowers the court to entertain the application, and to grant it if, exceptionally, it is persuaded that it is just to do so. The hearing of the application could, but for administrative reasons may well not, take place within the 21 days.

In my judgment, each of these constructions (of rules 36.11 and 36.6(5)) is correct. Each of the provisions is clear and unambiguous and neither taken alone is amenable to modification by construction or implication to accommodate the other so as to avoid the clash which is capable of arising. This means that one or both of the parties might think it advantageous to jump in before the other to establish a position of forensic advantage. The defendant may rush to make his application to withdraw and might, as the District Judge in the present case suggested, try to preempt the claimant by making some urgent application without notice. The claimant may rush to give notice accepting the Part 36 payment. Rule 1.3 suggests that on the contrary the parties should cooperate to avoid an unseemly adversarial scramble and the truculent correspondence which might follow it. Rule 1.2(b) suggests that the court must interpret the relevant rules as a whole to produce a just and economic result. The only question is whether the defendant should be given permission to withdraw or reduce a Part 36 payment which he has only just made and which, unless the court gives him permission to do this, the claimant is entitled to accept without permission.

I do not consider that the judge’s valiant attempt to resolve the dilemma is satisfactory or correct. He has, I think, invented an automatic stay for which the detailed provisions of Part 36 provide no warrant. I can conceive that his solution might generate abuse by unscrupulous defendants.

A preferable solution is that adopted by HH Judge John Newey QC conducting Official Referees’ business in Manku v. Seehra (1987) 7 Con LR 90. The facts of that case were close to those in the present appeal. A defendant made a payment into court in the light of the outcome of an experts’ meeting between surveyors instructed by each of the parties. The defendant then sought the opinion of another surveyor. In the light of this second opinion, he applied for leave to withdraw his notice of payment in. The plaintiff gave notice accepting the payment in on the same day as the defendant’s summons was delivered to the plaintiff’s solicitors. Judge Newey held that the plaintiff remained lawfully entitled to give notice of acceptance. He also held that the court had power to allow withdrawal of a notice of payment in even when the plaintiff has a right to accept it. He expressed his solution to the clash as follows:

“The second question is whether a court may allow withdrawal of a notice of payment in, if between the time when the defendant served his summons seeking leave to withdraw and the hearing of it the plaintiff has given notice of acceptance. The rules do not state that the issue of a summons for leave prevents the plaintiff from giving notice of acceptance. Rule 3(4) does provide that acceptance has the effect of staying the proceedings.

I think that it would be most unfortunate if a plaintiff were able to defeat a defendant’s application for leave to withdraw a payment in by giving notice of acceptance before the defendant’s summons could be heard. Since the plaintiff’s acceptance would not have terminated the action, but merely stayed it, I think that the court may notionally remove the stay and proceed to hear the application. A plaintiff’s acceptance does not prevent the court from allowing a defendant to withdraw, but is obviously an important consideration to be taken into account in deciding whether he should be given leave to do so.”

The essential structure of the relevant provisions of the Rules of the Supreme Court which Judge Newey was considering was the same as the equivalent provisions in Part 36 of the Civil Procedural Rules. In my view, Judge Newey’s solution can and should be applied to Part 36. There is no need for an unseemly rush to establish procedural advantage. If, exceptionally, a defendant wishes within the 21 days to withdraw or reduce a Part 36 payment, he should apply for permission to do so and inform the claimant of his application. If the claimant wishes to accept the Part 36 payment within the 21 days without permission, he should give the requisite written notice of acceptance. The stage is then set for the court to decide the defendant’s application in the light of the claimant’s notice of acceptance. Since to allow the defendant’s application would deprive the claimant of an otherwise unfettered right, the fact that the claimant had given notice of acceptance would be, as Judge Newey said, an important consideration to be taken into account in deciding whether the defendant should be given permission. It would be an additional consideration to those which may arise if a defendant’s application is made after the 21 days has expired. If the court gives the defendant permission, there is power to make any necessary order or direction to achieve its consequences.

In the present case, the claimant’s notice of acceptance was after the defendant’s application to withdraw and was obviously prompted by it. The logic of my analysis is that the court also has power to entertain an defendant’s application to withdraw or reduce a Part 36 payment which is made after the claimant has given notice of acceptance and where necessarily the claimant’s acceptance was not prompted by the defendant’s application.

On this analysis, although I have disagreed with part of his reasoning, the judge in the present case exercised a power which was in substance available to him. Mr Freedman submits nevertheless that the judge reached the wrong discretionary conclusion. He should not have given the defendant permission to reduce the Part 36 payment.

The standard of persuasion which a defendant applying for permission to withdraw or reduce a Part 36 payment has to achieve has been variously stated. In Cumper v. Pothecary, Goddard LJ said at page 70 that the defendant must show that there are good reasons for his application, such as the discovery of further evidence which puts a wholly different complexion on the case or a change in legal outlook brought about by a new judicial decision. He said that, apart from matters such as fraud or mistake affecting the original payment, the court should consider whether there is a sufficient change of circumstance since the money was paid to make it just that the defendant should have an opportunity of withdrawing or reducing his payment.

In Manku v. Seehra, Judge Newey referred to Cumper v. Pothecary and subsequent cases. He said of the case before him, that the defendant’s application was not based on the discovery of new evidence nor a change in legal outlook. The defendant was relying on a last minute review of available information by a fresh expert. He refused the defendant’s application.

In Marsh v. Frenchay Healthcare (1st February 2001), Curtis J considered a defendant’s application under CPR rule 36.6(5) to withdraw or reduce a Part 36 payment which the claimant had accepted, where shortly afterwards enquiry agents had taken videos of the claimant doing various tasks which were said to call in question the credibility of the case he had made. Curtis J considered that, under the CPR, the standard propounded in Cumper v. Pothecary should be discarded in favour of a flexible approach to achieve the overriding objective.

In MRW Technologies v. Cecil Holdings (22nd June 2001), Garland J heard an appeal against a Master’s order giving a defendant permission under rule 36.6(5) to withdraw a Part 36 payment. He said, in my view correctly, that the same considerations apply to giving permission to withdraw money in court as to refusing permission to take it out. He inclined, with reference to Curtis J’s decision in Marsh v. Frenchay Healthcare, to a more flexible approach to take account of the overriding objective. But he also considered that Goddard LJ’s phrase “a sufficient change of circumstance since the money was paid to make it just that the defendant should have an opportunity of withdrawing or reducing his payment” was to be adopted as consistent with the overriding objective. I agree.

In the present case, the judge referred both to change of circumstances sufficient to justify a reduction and to the overriding objective. But his erroneous decision that the defendant’s application operated as an automatic stay meant that he gave no, or too little, weight to the fact that the application had been made within the 21 days and that to grant it would deprive the claimant of an otherwise unfettered right to accept the payment. This requires this court to consider afresh the judge’s exercise of discretion, which in any event I consider to be, or to come close to being, plainly wrong.

The evidence before the judge and this court is that of the defendant’s solicitor attached to the application verified by a statement of truth. This relates the facts about Mr Pinder’s report and the delay in obtaining it which I summarised at the beginning of this judgment. Mr Freedman accepts that, if Mr Pinder’s opinion were accepted without qualification, the damages would be less than £24,500. He maintains that Professor Gregg’s opinion would sustain a larger award than £24,500. This court does not have either of the medical reports. We are unable to reach any considered view of our own. But I do not think it is necessary to do so. It is clear that the difference between the two experts was nothing out of the ordinary in personal injury litigation.

The defendant chose to make the Part 36 payment before Mr Pinder’s report arrived. In doing so, she secured the advantage of an earlier payment into court and took the risk that Mr Pinder’s report might improve her evidential position. The fact that it may have done so was not, in my view, even close to a sufficient change of circumstance, any more than was the second surveyor’s report in Manku v. Seehra. It was not based on the discovery of new evidence nor a change in legal outlook. Rather, the defendant was relying on a further review of available information by a fresh expert. I do not consider that the defendant has shown that she should in justice be permitted to reduce her Part 36 payment so as to deny the claimant’s otherwise unfettered right to accept the full payment within the 21 days.

For these reasons, I would allow the appeal and make appropriate consequential directions or orders.