Part 36: Offer To Settle Did Not Cover Claims In Draft Amended Pleadings

• Published date: 15 June 2023
• Subject Matter: Privacy, Data Protection
• Law Firm: Norton Rose Fulbright
• Author: Andrew Judkins

In Warburton v The Chief Constable of Avon and Somerset [2023] EWCA Civ 209, the Court of Appeal considered the scope of a Part 36 settlement offer to settle "the whole of the claim" where there were additional claims set out in the claimant's draft amended particulars of claim. The Court also considered and applied the principles of abuse of process in relation to an attempt to bring new proceedings after the settlement. The Court held that the settlement did not include the additional claims but the claimant was prevented from bringing new proceedings to raise the additional claims. The case is a further reminder of the need for certainty in Part 36 offers.

Background

In April 2018, the claimant brought defamation proceedings against the defendant police force (2018 Proceedings), in relation to information supplied to a prospective employer (another police force). In May 2019, the claimant filed and served draft amended pleadings as part of the 2018 Proceedings, which advanced a proposed data protection claim. In July 2019, before these amendments were granted, the claimant accepted a Part 36 offer from the defendant to settle "the whole of the claim", which ended the 2018 Proceedings.

In August 2020, the claimant issued new proceedings (2020 Proceedings) in relation to data protection claims. These were substantially the same claims set out in the draft amended pleadings in the 2018 Proceedings. The defendant applied to strike out the 2020 Proceedings and for summary judgment.

The High Court struck out the claimant's pre July 2019 data protection claims (i.e. claims arising out of matters prior to the July 2019 settlement) in the 2020 Proceedings as an abuse of process under the Henderson v Henderson principle, i.e. the principle that a party is prevented from raising a matter in subsequent proceedings that it ought to have raised in earlier proceedings. It also summarily dismissed most of the claimant's post July 2019 claims.

The claimant appealed to the Court of Appeal in relation to the pre July 2019 data protection claims. The claimant argued that Henderson v Henderson did not apply because the pre July 2019 data protection claims had been raised in the 2018 Proceedings (i.e. through the draft amended pleadings) and the Part 36 offer accepted in July 2019 did not cover these claims.

Decision

The Court of Appeal dismissed the claimant's appeal. It considered two principal issues: the scope of the accepted Part 36 offer and whether the pre July 2019...