WITHDRAWAL OF PART 36 OFFER BY EMAIL: CPR 3.10 SAVES THE CLAIMANT

The change in the discount rate meant that many claimants withdraw Part 36 offers they had made.  This has led to the question – is an email withdrawing an offer sufficient.  I am grateful to Dominic Graham  from Holmes & Hill LLP for  sending me a copy of the decision of Master Yoxall in Thompson -v- Reeve (20th March 2017) a copy of that decision is attached here Judgment of Master Yoxall – 20 March 2017.  Jeremy Crowther of 9 Gough Square represented the claimant.

THE CASE

  • The claimant brought an action for damages following a road traffic accident. The claim was put at £347,000 and a Part 36 offer was made on the 26th August 2016.
  • On the 28th February 2016 the claimant’s solicitors sent an email to the defendants withdrawing the Part 36 offer.  This was motivated by the change in the discount rate announced on the 27th February 2017.
  • On the 2nd March 2017 the defendants “accepted” the Part 36 offer. Again the acceptance was motivated by the change in the discount rate.
  • At a telephone CMC the Master directed that the claimant make an application in relation to the Part 36 position.

THE CLAIMANT’S APPLICATION

The claimant made an application for permission to withdraw the Part 36 offer; a declaration that the claimant’s offer was deemed to have been withdrawn on 28th February 2017 and for directions to trial.

THE CLAIMANT’S DIFFICULTY – WITHDRAWAL BY EMAIL WAS NOT EFFECTIVE

  1. Service of documents by email can only take place where the receiving party has indicated that it is willing to accept service by email (Practice Direction 6A, paragraph 4.1(1)).  The defendants in this case had not given any such indication.
  2. The claimant conceded that service of the notice of withdrawal was not good service but contended that CPR 3.10 could be applied so that notice of withdrawal can be treated as valid.

CPR 3.10

“General power of the court to rectify matters where there has been an error of procedure

3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.”

THE ARGUMENTS

The claimant contended that CPR 3.10 could be used in this context. The defendants argued that Part 36 is a self-contained code and that CPR 3.10 could not be used in this context.

THE DECISION OF THE MASTER: COULD CPR 3.10 BE USED?

The Master held that 3.10 has a wide effect and could be used in this context and applied to Part 36.

  • In the present case the claimant gave notice in writing. It was not disputed that the notice was received by the defendants.
  • It was the method of service that was defective and CPR 3.10 an be used to cure this defect.

IT WAS APPROPRIATE FOR CPR 3.10  TO BE USED AS A MATTER OF DISCRETION IN THIS CASE

The Master held  that it was appropriate to make an order under CPR 3.10 in the current case.

“In my view it would not be just or consistent with the overriding objective that a technical breach of the rules should impede the proper assessment of damages in this case”.

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