Sarah Robson Barrister

Key Points

Common Law Mistake does not apply in the Portal

Fitton v Ageas

DJ Parker, Liverpool CC, 8th November 2018


Here the Claimant made a global offer in the Portal as well as offers for each individual head of loss.  When the Defendant made a counter-offer by stating amounts for each head of loss, they omitted to clear the global offer field.  Thus when they sent their counter-offer, they effectively re-stated the Claimant's own offer back to them.  Perhaps unsurprisingly, the Claimant accepted the global offer.  Because of the differences in how the Portal shows settlements reached in the Portal where the A2A system has been used over the Web-based system, detailed statements were submitted by the Defendant to confirm what had been accepted.  At first instance the judge accepted the peculiarity of the differing output, but refused to accept that where the Defendants clearly mistakenly simply sent the Stage 2 pack to the Claimant containing the Claimant's own global offer that there was any meeting of minds and thus found settlement had not been reached, and stated she was distinguishing the matter from Draper.  


On appeal, Sarah argued that Draper did not say only one class of mistake did not apply in the Portal, all common law mistake was disapplied.  It was not the type nor quality of mistake which mattered.  All mistake was disapplied to cases in the Portal, it was a highly stand-alone code.  The court agreed and found that common law mistake had no place in the Portals.


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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of the judgment