The end is nigh for Carver

13 Sep 2011

You may have  been somewhat under whelmed by the trifling effort that is the 57th update to the Civil Procedure Rules, but it does contain one important amendment which should be noted by lawyers and insurers alike, writes Kelvin Farmaner, Head of The Insurance Litigation Team at Trethowans LLP in Southampton. 

The key provision is the amendment to the Part 36 Rules which effectively overrules the much-discussed Court of Appeal decision in Carver v BAA plc 2008.   The new rule is due to come into force on 1st October 2011.   

 

The case of Carver concerned an air hostess who fell and sustained an injury to her ankle when entering a defective lift at Gatwick Airport.  Liability was not in dispute in the case.   There was a significant dispute as to the severity of the ankle injury.  The Defendant made a Part 36 offer of £4,520.  The Court awarded the Claimant some £4,686.  If one discounted various arguments about interest and the dates on which the offer/award should be considered the Claimant had effectively beaten the Defendant's offer by around £50.  

 

However, the Court decided that a change of wording in Civil Procedure Rule 36.14 from the previous test of whether a Claimant "does better than" a Defendant's offer to a newer test of whether a Claimant obtains "a judgement more advantageous than" a Defendant's offer, was important.  The Court of Appeal were of the view that the newer wording permitted a more wide-ranging review of all the facts and circumstances of the case in deciding whether the judgement, which was the fruit of all the litigation, was worth the fight.  It decided to uphold the earlier decision of the trial judge that it was not worth the fight as the small amount gained was more than offset by the extra unrecoverable costs of trial and the stress of trial itself.  No reasonable litigant would embark on that campaign for such a small gain.  Accordingly the Claimant was ordered to pay  the Defendant's costs after the time for accepting the Defendant's offer had expired.

 

Whatever your views on the rights and wrongs of Carver v BAA it will be overruled by the new Rule 36.14 (1A) which comes into force on 1 October and provides that : ‘…..in relation to any money claims, "more advantageous", means better in money terms by any amount, however small, and "at least as advantageous" shall be construed accordingly'.