Kerry Underwood

COUNTER-OFFER IS NOT A REJECTION OF ORIGINAL OFFER IN THE PORTAL PROCESS

with 8 comments


The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Cox v Pace, Birmingham County Court, 23 October 2018, Claim D82YM554

a Deputy District Judge held that a counter-offer within the portal process did not amount to a rejection of the original offer, thus treating the portal rules as a self-contained code in the same way as Part 36.

As a matter of common contract law, a counter-offer acts as a rejection of the original offer, but that is not the case within the Part 36 regime, nor in the portal process.

I am grateful to Kevin McGough of MJP Solicitors for information about this case.

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Written by kerryunderwood

January 28, 2019 at 10:39 am

Posted in Uncategorized

8 Responses

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  1. That was established many years ago, in the (non-binding) appeal case of Purcell v McGarry HHJ Gore QC, Liverpool CC, 07.12.12, and is backed up by a number of other cases in support.

    sarahjrobson

    January 28, 2019 at 11:39 am

    • True – but as far as I am aware no binding authority on the point, but please correct me if I am wrong !! :-). If I am right, courts still free to take a different view, do interesting to see what they are doing on the ground.

      Kerry

      kerryunderwood

      January 28, 2019 at 11:46 am

  2. No, there is very little in terms of binding authority on cases to do with the portal, but that is as you would expect, given that, by definition, all the cases which start there are low value.

    Kilby v Brown confirmed that waiver and affirmation does not apply in the portal.

    Draper v Newport confirmed that common law mistake does not apply in the portal.

    Patel v Fortis confirmed that non-portal related CPRs do not apply in the portal.

    These all build up to show a picture of an entirely stand-alone code, one which is strict and tightly-bound. This is echoed in Sharp v Leeds City Council where the CA declined to read in any sort of implied exception into SIIIA costs. There is a clear drive for certainty, something which trumps everything else, even fairness sometimes. That is the way with fixed regimes.

    sarahjrobson

    January 28, 2019 at 11:59 am

    • This case also had a common law mistake point, and the court held, as in Draper v Newport, that indeed it did not apply in the portal process, which seems harsh to me as mistakes are very much easier to make when inputting on the portal.

      Kerry

      kerryunderwood

      January 28, 2019 at 12:48 pm

      • Very easy to make a mistake, especially when they re-program the portal and people aren’t used to how it now reacts. However, you can’t have certainty if you have common law mistake. As DJ Baker himself said in Draper, where would it end?

        sarahjrobson

        January 28, 2019 at 1:12 pm

  3. Improved portal system more user friendly. Easier to spot and check mistakes.

    kerryunderwood

    January 28, 2019 at 1:52 pm

    • You’re suggesting the MOJ could get a good IT system?

      sarahjrobson

      January 28, 2019 at 2:37 pm

  4. Shame on you 🙂 🙂

    kerryunderwood

    January 28, 2019 at 3:09 pm


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