Sarah Robson Barrister

Key Point

Common law Mistake does not apply in the MOJ Portal Protocol

Draper v Newport

DJ Baker, Birkenhead CC, 3rd September 2014


Here the only issue was whether common law mistake applied to cases in the Portal. The Claimant's solicitor accidentally accepted the Defendant's offer. She immediately rang the Defendant but was unable to get through to the correct person. She uploaded a letter to the Portal within half an hour to confirm that the offer had been accepted in error.


The judge considered the nature of the Portal and went through the facts against the over-riding objective. He determined that it would fundamentally undermine the Portal if common law mistake was allowed to apply. The Claimant's solicitor simply should have been more careful.


It has been interesting to see how often this first instance and non-binding decision has been followed.  It took 4 years for anyone to bring the issue to first tier appeal in Fitton v Ageas.   


Interestingly both counsel in the later case of Harris v Brown submitted that the Claimant here did not know that a mistake had been made, and thus distinguished it. Unfortunately that is clearly wrong, as the Claimant here was well aware that their own offer had been sent back to them by the Defendant.


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