CIVIL PROCEDURE BACK TO BASICS 95: ACCEPTING A PART 36 OFFER WHEN THERE IS MORE THAN ONE DEFENDANT

May 5, 2023 · by · in Civil Procedure, Part 36

This post arises out of an interesting question I was asked in a recent webinar on Part 36.*   The questioner asked wanted to accept a Part 36 offer by one defendant and continue the action against others.  The situation here is complex and a detailed knowledge of CPR 36.15 is necessary.  Much depends on the way in which the claimant puts their case against the defendants.

WHAT THE RULE SAYS

 

Acceptance of a Part 36 offer made by one or more, but not all, defendants

36.15

(1)  This rule applies where the claimant wishes to accept a Part 36 offer made by one or more, but not all, of a number of defendants.
(2) If the defendants are sued jointly or in the alternative, the claimant may accept the offer if—
(a) the claimant discontinues the claim against those defendants who have not made the offer; and
(b) those defendants give written consent to the acceptance of the offer.
(3) If the claimant alleges that the defendants have a several liability to the claimant, the claimant may—
(a) accept the offer; and
(b) continue with the claims against the other defendants if entitled to do so.
(4) In all other cases the claimant must apply to the court for permission to accept the Part 36 offer.

 

SUMMARY

  • If the Defendants are being sued jointly in the alternative the claimant must discontinue the claim against the defendants who have not made the offer if those defendants give written consent to the acceptance of the offer. Note the two requirements here – in particular this only applies if the the non-offering defendants consent to acceptance.
  • If the other defendants do not consent to acceptance then the claimant must apply to court for permission to accept the offer.
  • If the claimant states that the defendants have a several liability then the claimant can accept the offer and continue with the claim against the other defendants, if entitled to do so.

*The webinar will shortly be available on YouTube. I will post details and update the link when this happens.

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