Whether Part 36 offer to settle the whole claim settled further claim added later on

The claimant engaged the services of the defendant to help construct two properties. He commenced proceedings against the defendant in respect of one of the properties, and subsequently made a Part 36 offer to settle that claim. The offer was expressed to be intended to settle "the whole of this claim". The offer was not accepted at that time. Amended Particulars of Claim were subsequently filed to add the claim in respect of the other property. Later on, the defendant accepted the Part 36 offer and argued that the claim in respect of both properties had been settled because, it argued, "if the nature and extent of the claim varies in the course of proceedings, the offer remains an offer to settle the whole of the claim (whatever it may now be)". The claimant countered that only the claim in respect of the first property had been settled.

The judge agreed with the claimant.

She accepted that where an offer in respect of the whole of the claim is made and the scope or value of the claim subsequently increases, and the offer is not withdrawn or varied, "the offer relates to the whole of the claim made at any time the offer remains open for acceptance". However, this case was different because the offer was clearly only intended to settle the claim in respect of the first property, and that did not change when the second property was added to the extant proceedings: that was a distinct and separate "claim": "That puts this case into a very different picture from the one in which a further cause of action in respect of the same subject matter is added to the claim or a fresh allegation or further head of damage is added in relation to an already pleaded claim".