Multiple Part 36 offers : LG Blower -v- Reeves [2010] EWCA 726, June 25, (unreported)

L.G Blower Specialist Bricklayer Limited (‘C’) -v- Reeves (‘D’) [2010] EWCA 726, June 25, (unreported)

What is a Part 36 offer?

Covers offers to settle which have been made in accordance with part 36. The benefits are, inter alia, that there are costs consequences.

How do I make a part 36?

A party wanting to make a part 36 may elect to use form N242A. Alternatively, such a party may elect to draft a letter.

For an offer to settle to be a part 36 it must:

(1) be in writing

(2) state that it is intended to have the consequences of Part 36

(3) give a period of not less than 21 days within which the defendant will be liable for the claimant’s costs (though note that the 21 day rule does not apply if the offer is made less than 21 days before the start of the trial.

(4) specify whether the offer relates to the whole claim or to a part of it or to an issue that arises within it and if so which part or issue.

(5) state whether it takes into account any counterclaim.

A part 36 offer is made when it is served on the offeree (provided, of course, that the offer is in the form prescribed by part 36).

How is a part 36 accepted

When the offeree serves written notice on the offeror accepting the offeror’s offer.

L.G Blower Specialist Bricklayer Limited (‘C’) -v- Reeves (‘D’) [2010] EWCA 726, June 25, (unreported)

Background to the litigation

C sued D for unpaid invoices for services rendered. D counterclaimed losses sustained due to poor workmanship of C.

During the course of the litigation D made a number of Part 36 offers which C did not accept. D withdrew all of their offers save for one made on 15 May 2007.

C obtained judgment for £8,375 together with interest. The judge awarded costs in favour of C but restricted C’s costs to 50% from 08 January 2008.

On appeal of the costs order D contended that the judgment was not more advantageous than the offer of 15 May 2007 therefore by part 36.14(2) (which states that where a claimant fails to obtain judgment which is more advantageous than a defendant’s part 36 offer the defendant is entitled to his costs from the date on which the relevant period expired (unless the court considers it unjust to do so).

The District Judge held that the un-withdrawn offer of 15 May 2007 was superseded by D’s later offers (which were subsequently withdrawn).

The court held inter alia

Part 36 is clear as to how an offer is made, how it may be varied and how it may be accepted.

Part 36 remains open for acceptance up to trial where it is rejected or where it is withdrawn under rule 36.3(7).

Where a party makes multiple offers a later offer does not revoke or vary an earlier offer, and all of may be capable of acceptance at any one time.

The Circuit Judge erred in holding that the offer of 15 May 2007 had been superseded.

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