Portal Mistakes and Consequences
The general rule in common law when a genuine mistake has been made by a Solicitor is that the mistake can be rectified. This common law rule is designed to prevent the harsh consequences that could otherwise occur. A question that is often raised however, is whether or not this common law doctrine applies to the pre-action protocol for low –value road traffic accident claims; the answer to which seems to be no.
It has been made clear that the pre-action protocol is a self-contained scheme governed, somewhat harshly, by its own rules. An example of this can be seen in the caser of Draper v Newport. In this case the Claimant fee-earner accidently pressed ‘yes’ on the portal twice, instead of once, which meant that she had unintentionally accepted the Defendant’s offer without obtaining her Client’s instructions. The Claimant fee earner noticed the mistake immediately and emailed the Defendant handler with an explanation of the mistake within half an hour. The Defendant refused to accept the mistake and the matter appeared before the Court. The Court held that the common law mistake doctrine did not apply to a portal case. The reasons given for this was that the portal was introduced as a streamline online process which is faster and cheaper than cases which are not dealt with under the process and therefore a common law doctrine should not apply.
This point of law was considered further with the case of Allison v Bertiluyte, although the circumstances differ the argument remains the same. In this case the Claimant Solicitor accepted the Defendant’s counter offer meaning that payment was due in 14 days. On day 13 the Defendant contacted the Claimant to advise that the offer was made in error and therefore payment would not be made. Part 8 proceedings where issued by the Claimant and an order was made for the payment to be made. The Defendant subsequently made an application to set aside the judgement.
On hearing the Defendant’s application the Judge accepted that the offer made was in fact a mistake, however the issue was whether or not this mistake undermined the Claimant’s acceptance of the offer. The decision made was that the mistake did not undermine the acceptance. This was not only due to the decision of Draper v Newport but also due to the rule in contact that if the mistake doctrine is to apply then the Claimant would need to have known that the offer was a mistake, which they did not.
The cases set out above, although different in circumstances, highlight the clear message from the Court that when dealing with matters via the portal there is no room for mistake and extreme care must be taken when dealing with the same on a daily basis.