Court of Appeal holds that offer was not a valid Part 36 offer

The claimants commenced proceedings against the defendants and the defendants subsequently made an offer, purportedly in accordance with Part 36, to settle a new claim which the claimants intended to add but for which permission to amend the claim form had not yet been received by the court. The claimants accepted that offer and then abandoned the pleaded claims.

The issue in this case was whether the offer was indeed a Part 36 offer. CPR r36.2 provides that a Part 36 offer must, amongst other things, "state whether it relates to the whole or the claim or to part of it or to an issue that arises in it and if so which part or issue".

The Court of Appeal has now held that this was not a valid Part 36 offer. It was said that "In civil proceedings, claims/parts/issues can only properly be defined by reference to the pleadings" and so a claim which has not been pleaded does not fall within the definition of a Part 36 offer. Although Part 36 offers can be made before commencement of proceedings, once proceedings have been commenced, only pleaded claims fall within the definition.

Nor did it matter that the new claim had been the subject of a proposed amendment and the defendants' solicitors had indicated that they would not oppose the amendment. It was also not open for the parties to agree between themselves that this was a valid Part 36 offer: "the parties cannot agree that an offer or an acceptance is in accordance with Part 36 if, on analysis, it is not".