Practice and Procedure

KERRY ANNE DRINKALL (A Minor suing by her Mother & Litigation Friend) v DEAN HARRY WHITWOOD (2003)

PUBLISHED November 6, 2003

As held in Dietz v Lennig Chemicals Ltd (1969), a settlement agreement with a minor was only a proposed settlement until approved by the court and as such the defendant was entitled to renege on that settlement where it had not been approved.Trial of a preliminary issue in an appeal from the decision of District Judge Glentworth on 4 October 2002, that a compromise agreement between the claimant ('D'), a minor who suffered permanent brain damage as a result of a road traffic accident, and the defendant ('W'), was valid. D suffered the injury as a result of colliding with a car driven by W on 19 January 1998 whilst riding her bicycle. On 5 April 2000, before proceedings were issued, D made a Part 36 offer to settle the issue of liability on an 80:20 basis in her favour. The offer was accepted on 7 April 2000 by W's insurer's loss assessors. On 26 September 2001, which was 22 days short of D reaching her eighteenth birthday, W withdrew from that settlement agreement with a view to contending for a higher degree of contributory negligence because D had not been wearing a helmet. On 11 January 2002, D issued particulars of claim pleading that the April 2000 exchange of letters constituted a binding agreement on the issue of liability. W claimed that D was a minor in April 2000 and that the parties were unable to enter into a binding settlement without the approval of the court. On the issue as to whether there was a valid compromise agreement, Glentworth DJ held on 4 October 2002 that the agreement was valid and binding. His Honour Judge Hepple QC upheld that decision on 6 February 2003 and the present appeal was brought with the permission of Hale LJ. The appeal turned on the construction and application of CPR Part 21.10.HELD: (1) It was unnecessary for the court to reach its own conclusion on the correctness or otherwise of the judge's reasoning, as the House of Lords had decided the same point by reference to materially identical rules in Dietz v Lennig Chemicals Ltd (1969) 1 AC 170, and ruled that the settlement in Dietz (supra) was only a proposed settlement until the court had approved it. (2) The judgment in Dietz was decisive in the present appeal and the fact that agreement was reached pursuant to the express provisions of CPR Part 36 could make no difference. The judge's reasoning simply could not stand in the light of Dietz, to which his attention had not been drawn. (2) The argument that the impact of Dietz and the effect CPR Part 21.10(1) could be escaped by reference to the agreement could not stand, as it would be intolerable were the requirement for the court's approval to be escaped merely because some issue remained to be agreed. (3) Though it might seem regrettable, W was entitled to renege on the agreement. The settlement agreement was invalid and W was accordingly entitled to repudiate it.Appeal allowed.

[2003] EWCA Civ 1547