Stephen Gerlis on why inadvertent disclosure to the court of an offer may not spell the end of a trial

Rule 36.19(2) of the Civil Procedure Rules 1998 states: ‘The fact that a part 36 payment has been made shall not be communicated to the trial judge until all questions of liability and the amount of money to be awarded have been decided.’


Therefore, it ought to follow that if inadvertent disclosure takes place of what is, after all, privileged or inadmissible material, the judge will have to disqualify himself - or ‘recuse’ himself - from hearing the case any further.

You’d think a judge would know to recuse himself before he came in, wouldn’t you?

But is that necessarily so? Two cases, one of them recent, show that such a disclosure need not necessarily bring the trial to a grinding and expensive halt.

In Berg v IML London Limited [2002] 4 All ER 87, a part 36 offer was not involved but the case involved an inadvertent disclosure of an offer to settle. The claimant had applied for summary judgment in a claim for non-payment of professional fees.


During the course of without-prejudice correspondence, there was a suggestion by the defendant that it would submit to judgment in a certain sum provided the remainder of the claim was remitted to the county court. That correspondence was disclosed to the master who admitted that he had read it. He was reminded of that fact by the defendant at a further hearing a few months later in support of the defendant’s application that the master recuse himself from dealing further with the matter, which he did.


In the recent case of Garret v Saxby [2004] All ER (D) 302 (Feb), the alleged disclosure of a part 36 offer was contained in papers sent to the judge on an appeal in a personal injuries case. However, in this case the Court of Appeal found that there was no evidence that the judge had actually read the offer. Notwithstanding that, the court discussed what would have happened if the judge had done so.


The similarity in the courts’ view in both cases is remarkable. The mere fact that an inadvertent disclosure to the judge may have taken place, is not necessarily the end of the world. The question to ask is this - is a fair trial still possible? In Berg, it was made clear that this is an objective test based on the observations of a ‘fair-minded and informed observer’. Neither case involved any suggestion of partiality or bias, nor any suggestion that the judge had a relationship with a party or an interest that might give rise to it.


If the judge took the view that he could sensibly disregard irrelevant or prejudicial material and was able to give a sound and proper judgment, then it would be within his discretion to continue to hear the case and it was unlikely that the exercise of that discretion need come under the scrutiny of an appellate court.


In neither case did the appellate court consider that the judge would have to recuse him from continuing to hear the matter.


District Judge Stephen Gerlis sits at Barnet County Court