The mills of god

Over the last 20 years, I have dealt with every conceivable type of litigation in every conceivable court and tribunal. One area of work that has consistently enabled my starving little ones to eat, has been credit hire litigation.

For various reasons there is a considerable overlap between credit hire and costs litigation. Students of legal history will note that the costs war over the enforceability of conditional fee agreements, grew out of arguments that I and many others had successfully deployed in the credit hire litigation of the late 1990s, where similar arguments of unenforceability arose in relation to credit hire agreements.

The overlap continues today: an interesting appeal I dealt with recently concerning a £120,000 claim for credit hire hinged upon the existence or otherwise, and proper construction to be given to a part 36 offer.

In His Honour Judge Gargan sitting in the County Court at Middlesbrough in the case of Lee Hogg v Louise Newton County Court at Middlesbrough 18th May 2018 upheld the decision of District Judge Read made in 2016, and effectively dismissed the claim.

The circumstances of the case were slightly unusual, in that the defendant was able to accept an extant part 36 offer for a modest sum made very early in the life of the case, the existence of which had been overlooked when the far more substantial claim for credit hire was made. I noted the District Judge’s decision at the time: http://credithirebarrister.com/uncategorized/part-36-problems/.

The claimant unsurprisingly appealed. The appeal has now been dismissed. The issues raised at first instance, were relitigated in the appeal court, together with a new and interesting argument that the part 36 offer, was not in fact, a part 36 offer and which was met with counter arguments of approbation and reprobation, estoppel and the doctrine of substantive compliance.

I am grateful to my instructing solicitor Gary Orritt of DAC Beachcroft for the instructions and who has put together an excellent summary of the case here:

https://www.dacbeachcroft.com/en/gb/articles/2018/may/hogg-v-newton-the-importance-of-insurers-and-solicitors-complying-with-part-36-of-the-civil-procedure-rules/

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