Some recent cases suggest that caution must still be applied when drafting and considering Part 36 offers.
Part 36: flexible application by the courts
In Sutherland v Turnbull, the claimant suffered multiple injuries having been run over by the defendant, after falling/jumping from her husband’s car (copious alcohol said to be involved).
The defendant made a Part 36 offer to contribute 30 per cent of the damages and consequential loss arising from all of the injuries with the exception of the head and facial injuries. He alleged those injuries were caused by the claimant falling into the road and not by him running her over.
The offer did not state whether it related to the whole claim or just to part of it. The judge concluded, however, that on reading it objectively, it was an offer to settle the whole claim. This entitled the claimant to her costs as of right in accordance with CPR 36.10(1).
There was another problem with the offer. It stated that it was only open for acceptance for 21 days. Under the new version of Part 36 a Part 36 offer can no longer be time-limited. Following the Court of Appeal’s decision in Onay v Brown, the judge held that any reasonable solicitor would have concluded that the writer’s intention was for CPR Part 36 to apply and that it was a valid Part 36 offer.
These cases would suggest a judicial trend not to apply too literal an approach to the requirements of a Part 36 offer and to therefore limit technical challenges to Part 36 offers, with a view to promoting settlement.
… Or not?
Other recent judgments suggest that there may not always be such a flexible interpretation of Part 36.
In contrast to Sutherland v Turnbull, C v D held that a time-limited offer, expressed to be open for 21 days, was not capable of being a Part 36 offer even though the offer stated that it was intended to have the consequences set out in Part 36. The judge held that it was not possible to interpret the wording consistently with Part 36. It was therefore not a Part 36 offer and was no longer open for acceptance by the defendant when it purported to accept it.
In Gibbon v Manchester City Council the Court of Appeal made it clear that, where Part 36 is inconsistent with general principles of contract law and the rules of offer and acceptance, Part 36 prevails.
The court also held that a Part 36 offer may be accepted at any time, unless the offeror has withdrawn it by serving a notice of withdrawal on the offeree. There can be no implied withdrawal, even if another offer has been made. The express notice of withdrawal must be in writing; clearly identify the offer by referring to the date and the terms; and make it clear that the offer has been withdrawn.