Kore v Brocklebank – pre-action Part 36 offers in fatal accident claims

Kore v Brocklebank [2019] EWHC 3491 (QB)

This case highlights the importance of raising enquiries regarding the identity of potential dependants at an early stage and carefully wording offers in pre-action fatal claims, as there are potential pitfalls on both sides.  It is a particular issue for Defendants wanting to resolve the entirety of a claim pre-action, as section 2(3) of the Fatal Accident Act cannot be relied upon.

Facts

A claim was brought by Mr Kore arising out of the death of his 18-year-old son, who was a passenger in a vehicle involved in a road traffic accident.  The Defendant was the personal representative of the driver, who had also died in the collision.

The Claimant sent a Letter of Claim which was said to be in respect of dependency, bereavement and funeral expenses.  Liability was admitted and the Claimant was invited to provide details of financial losses.  It is of note that the Letter of Claim and all subsequent correspondence from the Claimant’s Solicitors did not identify any Claimants other than Mr Kore and consistently referred to the Claimant in the singular.

A Part 36 offer of £12,185 (gross) was made by the Defendant in Form N242A for the “whole of the claim”.  The Defendant clarified within the form that:

“As the Deceased was 18 at the time of his death with no dependant’s (sic) for the avoidance of doubt bereavement damages are not payable as per the Fatal Accident Act 1976.”

The offer was accepted by the Claimant.  Later the same day, the Claimant’s Solicitors emailed the Defendant’s insurer:

“Further to my earlier email, I write to clarify that the acceptance of the Part 36 offer is in relation to the funeral expenses only. The dependency claim will continue. If you are happy to proceed on these terms please pay the cheque to us of the agreed amount as per the last payment.”

The Claimant sought to pursue a dependency claim on his own behalf and on behalf of the Deceased’s mother and sisters.  The dependency claim was defended on the basis that the claim under the Fatal Accidents Act 1976 – section 2(3) “Not more than one action shall lie for and in respect of the same subject matter complaint” – had been comprised.  The matter was tried as a preliminary issue and the Claimant’s claim was dismissed; despite it being raised by the Claimant that two of the dependants lacked capacity and the settlement/apportionment thereof, had not been approved by the Court.

The appeal came before Mr Justice Turner in Liverpool on 12 December 2019.  The Claimant raised a different ground of appeal; that the Part 36 offer included only the claim of the Claimant himself, and not the other alleged dependants.  As the wording of the offer could be considered without evidential investigation, Mr Justice Turner exercised his discretion in favour of the Claimant to consider the new ground raised on its substantive merits.

Mr Justice Turner was satisfied that:

• Only one Claimant had been identified in correspondence from the Claimant’s Solicitors;
• It could not sensibly be argued that, in accepting the offer, the Claimant was effectively warranting that there were no other dependants;
• In any event, section 2(3) of the Fatal Accident Act 1976 does not directly apply as no action had been commenced at the time of acceptance of the Part 36 offer;
• Whilst the offer was expressed to be in respect of the whole of the claim, the only claim that had been raised was that of the Claimant himself and did not extend to claims from other alleged dependants.

It was held that the Claimant was not entitled to bring the proceedings on his own behalf (that claim having been validly compromised), but the claims of the other alleged dependants remained viable.

Summary

This case highlights the importance of raising enquiries regarding the identity of potential dependants at an early stage and carefully wording offers in pre-action fatal claims, as there are potential pitfalls on both sides.  It is a particular issue for Defendants wanting to resolve the entirety of a claim pre-action, as section 2(3) of the Fatal Accident Act cannot be relied upon.