Significant Cases & Articles
DEFENDANT FRIENDLY; PART 36 OFFER - ACCEPTANCE OUT OF 21-DAY PERIOD; COSTS INCURRED DURING 21 DAY PERIOD NOT RECOVERABLE FROM THE DEFENDANT IN THIS CASE
Vane v Baker, Yeovil County Court, November 2004
Summary
The case involved an application before District Judge Smith by Claimant. The claim was to get permission for the claimant to accept the P36 payment into court. The date for accepting the payment, without permission of the court, was from the 5th August to 26th August, being the 21 days from the notice of service. The claim arose from an RTA in December 2002, whereby a tractor drove onto a road into the path of the claimant. The particulars of the injuries in medical report and spoke of a whiplash-type injury primarily.
Offers were made on liability more than 12 months prior to the application and a Part 36 offer much earlier in the claim. A further Part 36 offer was made to increase the overall offer.
Judgment
The thrust of the medical report was that of a simple whiplash and in the opinion of the expert these would resolve within 6 months with physiotherapy. These proceedings were archetypal of the thousands of minor road traffic accidents that come before the courts and there is nothing that is the slightest bit difficult about it.
Liability was in dispute up to April 2004 and the proceedings commenced around February 2004 and partial liability concessions were offered. DJ Smith understood the date of service was the 5th August 2004, so that time for acceptance under CPR 36 was the 26th August. The offer was not accepted, and it was suggested that it was not acceptable until the 6th September for reasons set out in the statement of the fee earner/litigation executive of the Claimant’s Solicitors. DJ Smith understood that she stated that liability was disputed throughout, but he felt that this was an extremely simple case. Even if there had been a matter of contributory negligence, this would not make it a difficult case. It appears to DJ Smith that they dispatched instructions to counsel to advise on liability and quantum. Counsel dealt with this and he sent back some advice, which was received on the 25th August. They still had one day to accept. On the 25/8 they told the claimant of the advice and said the payment should be accepted. Whether they explained the urgency to the claimant was not clear. Whether they told the claimant of this elapsing period in a further 24 hours was not clear, nor why they made no attempt to chivvy the claimant at all. In short there was no real explanation for the lapse of the 21 days or why instructions to counsel were not dispatched until 22/8 some 17 days into the 21-day period. The claimant said they were entitled to their costs and even if they had accepted late.
DJ Smith came to the conclusion that this was a simple case, there was no adequate information regarding the delay and therefore the 21-day period was immaterial and the claimant shall be able to recover costs only to the 5th August 2004.
Claimant can accept the payment in and the Defendant solicitors were to have the interest on the monies paid into court. Costs of the hearing for the defendant were assessed and awarded to the Defendant for the application.
Counsel for Claimant asked for leave to appeal. DJ Smith refused permission to appeal, as this was a matter for his discretion.
Conclusion
This is a very useful case on the part of the Defendant where the Claimant does not conduct the case with the speed with which they should. Here the offer could have been accepted during the 21-day period and as it was not there were costs incurred by TPS that they wanted LD to pay. The whole ethos of the CPR Part 36 is to encourage parties to accept offers made, where applicable, and to conduct cases generally in a professional manner. There would be no point in the 21-day period if it were of no consequence to the parties whether they accepted in that time.
This case is reported on Lawtel
LOSS OF ENJOYMENT OF A HOLIDAY
Mr M J Snyder V Veloso Tours Limited 22/11/2004
Summary
- The Claimant purchased from the Defendant a tailor made first class holiday as a special holiday for him and his wife.
- Premier Travel Agency Limited (PTAL) acted as an intermediary. PTAL contacted the Defendant after viewing a travel brochure with a similar holiday to that required by the Claimant. PTAL explained to the Defendant that the Claimant required the holiday to be tailor made to be a First Class holiday in every way. The Defendant agreed to the requests of PTAL, but persuaded the Claimant to forgo Club Class internal flights explaining that they were too expensive and difficult to arrange.
- An itinerary was produced, which led the Claimant to believe that his wishes were to be carried out fully. The Claimant found, however, that inter alia the hotel rooms booked were not First Class. They were Standard rooms. In one specific hotel the Claimant requested a room with a waterfall view which was not complied with. There were also no private transfers between hotels and airports.
- The Claimant therefore claims damages in the sum of £1,000 from the Defendant being in breach of contract, causing distress and disappointment.
CASES CITED BY THE CLAIMANT
Glover v Kuoni Travel (1987); £1,600 damages for stress, anxiety & disappointment at £100 per day.
Powell v Arrowsmith Holidays (1985); £750 damages for inconvenience where the room provided was not what was requested.
Beck v Tropical World-wide Holidays Ltd [1999] CLY 1384; £1,800 damages for distress and disappointment where substandard accommodation was provided rather than the 5 star room which was requested.
Julian Antony Jackson v Horizon Holidays Ltd (1874); £1,000 damages for distress and inconvenience. The judgment stated that one may sue for the discomfort and disappointment suffered by their partner.
Coughlen v Thomson Holidays [2001] CLY 4276; the judgment stated that the more expensive the holiday, the larger the award should be.
JUDGMENT
DJ Seith at Kingston County Court accepted the Claimant's evidence from PTAL. He stated that the Claimant had made it clear that he wanted a first class holiday, private transfers, tours and he wanted as much time as he could to have a hassle free and relaxing holiday.
"Mr Snyder complained upon arrival because the room was standard and not what he wanted. I am clear that 'standard' is at the lower end of the room allocations and the Claimant was entitled to receive more than this and he was put to some inconvenience in contacting the Defendant by his mobile phone and this caused distress on a number of occasions.
I accept that the Claimant was entitled to receive private transfers and tours, which were not undertaken and the sight seeing of the statue of Christ was not entailed.
On the whole it appears that the price paid by the Claimant (over £13,000) means that he was entitled to receive a first class holiday and he did not receive that.
I find for the Claimant, taking into account the issues complained about and the cost of the holiday. I award the Claimant £2,000.”
Conclusion
The sum awarded for loss of enjoyment doubled the claimed sum. This was a very pleasing result indeed.
The fact that the Claimant had paid such a large price for his holiday and was not claiming the diminution in value, being the difference, in monetary terms, between what he was promised and what he actually received was taken into consideration.