Burrett v Mencap Ltd [2014] EW Misc B50 (CC) (14 May 2014) [2014] EW Misc B50 (CC)

EWMISC
Burrett v Mencap Ltd [2014] EW Misc B50 (CC) (14 May 2014)
[2014] EW Misc B50 (CC) · 2014-05-14
[1]What I have before me is the interesting question of interpretation of Part 36. One would have thought that Part 36, having been in existence for many years now every possible wrinkle in it would be ironed out before now. It appears not to be so because the question I have to decide is whether on variation of a Part 36 offer the time for acceptance is fixed by the time for acceptance of the original offer or whether a fresh period of time begins to run. I have been referred in detail to the provisions of Part 36, in particular 36.2, 36.3, 36.7 and 36.10.[2]36.2(2) sets out the form and content of a Part 36 offer.

(c) , that it must:

‘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.’ 36.3 deals with general provisions and that defines the relevant period at subparagraph (1)(c) where it says: ‘(i) in the case of an offer made not less than 21 days before trial, the period stated under rule 36.2(2)(c) or such longer period as the parties agree.’
It goes on at subparagraph (6) to say:
‘After expiry of the relevant period and provided that the offeree has not previously served notice of acceptance, the offeror may withdraw the offer or change its terms to be less advantageous to the offeree without the permission of the Court.’
Subparagraph (7) tells me that:
‘The offeror does so by serving written notice of the withdrawal or change of terms on the offeree.’
[3]36.7 specifically deals with time when a Part 36 offer is made. Subparagraph (1) tells me that it is made when it is served on the offeree. Subparagraph (2) tells me that:
‘A change in the terms of a Part 36 offer will be effective when notice of the change is served on the offeree.’
There is no reference in any of those rules to the point that is now before me.[4]It is generally accepted or is common ground between the parties that in July of 2013 an offer in the correct form was served on the Claimant and that offer was not accepted and neither was it withdrawn and it, as it were, lay on the table. There then came a time in January of this year when the Defendant served on the Claimant another, not a notice because it was not in the form of a notice but it was specifically a variation, a change of the terms of the offer dated 19 th July. This is what the letter of 17 th January 2014 says:
‘We hereby change the terms of our client’s Part 36 offer dated 19 th of July pursuant to CPR 36.3(6).’
It then sets out those terms that are changed. In the event, that was an offer that was subsequently accepted but not within the 21 days that it is said should or necessarily follow from that variation.[5]I have had the benefit of being referred to two authorities or perhaps the one authority, being CvD [2012] where

Lord Justice Rix said that:

‘There is a general principle of construction that a document which falls to be construed should be read as a whole and its separate parts should be so construed, if that is possible, as to bring rational sense and consistency to that whole.’
That does not really tell me anything that one perhaps did not know before but it is useful to be reminded of that.[6]I have to ask myself where the rules do not assist specifically on the point, what is the purpose, what is behind, the authority that allows a change to be made? 36.3(6) and (7) specifically allow an existing Part 36 offer to be changed. It says so expressly in subparagraph (6). ‘…or change its terms to be less advantageous to the offeree without permission of the Court.’ One could I think reasonably assume that because maybe the nature of the case has changed or certainly the strength or weakness of the evidence has changed that a Defendant should have an opportunity of reviewing previous offers in order to bring the litigation to a conclusion. That makes good sense but should it be able to carry with it the costs protection that attached to the original offer? Of course, in this case we are talking about a difference of some six or seven months which may be of significance in terms of costs. One might also have thought that where an offer has been changed there should be a period of time allowed to the Claimant to at least reflect on that change and what the consequences of acceptance or refusing the offer bring to the Claimant. That also would make good sense.[7]I am constrained by the rules themselves and I should not seek to wonder and deliberate with myself what Parliament or the draughtsman there had in mind when the rules were drawn. The fact is that 36.7 is entirely silent as to any extension or renewal or replacement of the time for acceptance. There was the opportunity for it to be specified. It does not. 36.7(1) tells me when it is made and it tells me when it is effective. It does not tell me if there is a further time allowed for contemplation and I believe that it would have done. I see no authority and no basis from anything I have read or any of the submissions that allows me to find there is an implied entitlement to a period, the relevant period being, as it were, renewed at that point.[8]For those reasons, therefore, I find that the terms of the original offer stand and the time that is given in that original offer is the one that applies. Therefore, the application is dismissed.