Cards must be on the table

Hertsmere Primary Care Trust and others v Estate of Balasubramaniam Rabindra-Anandh and another ChD TLR 25 April

The claimants made an offer to settle their claim against the defendant under CPR Part 36. At a settlement meeting the defendant’s counsel told the claimants’ solicitors that their letter did not comply with the terms of Part 36, but declined to elaborate on this. When the claimants’ solicitors wrote to the defendant’s solicitors requesting them to explain exactly the basis of the alleged non-compliance, the defendant’s solicitors did not reply. The defendant did not disclose the non-compliance point until the hearing, when the master held that the error was a pure technicality and recourse to that technicality should not preclude the entitlement of the claimants to the full benefit of indemnity costs under CPR rule 36.21. The defendant appealed against the order on the ground that it was perfectly proper to withhold information as it had done and to use it at a later date. It submitted that the defendant’s lawyers had no duty to enable the claimant to perfect the defect and rectify the error.