Burrett v Mencap Ltd

In this case, Northhampton County Court felt bound to decide that the original acceptance period for a Part 36 offer had expired and was not renewed upon the offer being varied. This decision is surprising, but does appear to be in accordance with the strict letter of Part 36 of the Civil Procedure Rules. In light of this ruling, offerors may wish to consider varying their offers rather than making completely new offers since the latter will trigger a new period for acceptance to run.

A settlement offer in the correct form was served on the claimant, Burrett by the defendant, Mencap, on 19 July 2013, where it lay on the table, neither unaccepted nor withdrawn. On 17 January 2014, Mencap served on Burrett a variation to change the terms of the July 2013 offer. Burrett accepted the varied offer. The issue was whether, in relation to the varied Part 36 offer, the time for acceptance remains 21 days from the date of the original offer or whether a fresh 21 day period of time begins to run from the date of the varied offer. If the latter, the claimant, Burrett would have the benefit of rule 36.2(2)(c) which provides that the offer should specify a period of not less than 21 days within which the Defendant will be liable for the Claimant’s costs in accordance with rule 36.10 if the offer is accepted”.

The Northampton County Court reflected upon whether the varied offer should be able to carry with it the costs protection that attached to the original offer. In this case, six months had passed between the original offer and the varied offer. It noted that CPR Part 36 does not provide any guidance about extension or renewal of the time for acceptance of varied Part 36 offers. Nor does it set out whether the offeree should have any time to contemplate the terms of the varied offer. In light of that, the Court was forced to find that there is no implied entitlement to the original period for acceptance being renewed or extended upon the offer being varied. The Court concluded that the time that was given in the original offer was the applicable relevant period for acceptance.