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Part 36 and time-limited offers

Since the new Part 36 regime came into force many parties continue to make old style offers which are specifically expressed to be open for 21 days.


Such offers conflict with the new provision that Part 36 offers can, broadly speaking, be accepted at any time until the trial has started (36.9(2)) unless they are withdrawn.


So how are litigants supposed to treat offers which say on their face they are Part 36 offers, but also say they are only open for acceptance for 21 days?


The High Court recently answered that question in C v (1) D (2) D2 [2010] EWHC 2940 Ch. Mr Justice Warren’s answer is that a time limited offer cannot be a Part 36 offer at all (see paragraph 27).


The ramifications of this are very significant indeed:-


1)      Time limited offers nonetheless expressed to be made pursuant to Part 36 are simply not open for acceptance after the time limit has passed.

2)      Time limited offers which are beaten will not result in Part 36 costs consequences, as they are not Part 36 offers. Such offers do not provide Part 36 costs protection. 

3)      When drafting a Part 36 offer care must be taken to ensure that the wording of the offer does not conflict with the wording of CPR Part 36 as if it does the other side can rely on C to argue it is not a Part 36 offer at all.



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