Service formalities must be complied with in accepting Part 36 offer

A recent decision demonstrates that a Part 36 offer to settle will not be validly accepted unless written notice has been served on the offeror in accordance with the usual service rules under Part 6 of the Civil Procedure Rules: Sutton Jigsaw Transport Ltd v Croydon London Borough Council (QBD, 27 February 2013).

In this case the claimant purported to accept the defendant's Part 36 offer during the short adjournment on the first day of the trial, first orally and then by a hand-written note given to the defendant. Two minutes after receiving the hand-written note, the defendant sent a fax to the claimant's solicitors with written notice that the offer was withdrawn.

The court held that the offer had not been validly accepted. CPR 36.9(1) provides that a Part 36 offer is accepted by serving written notice on the offeror and CPR 6.22(3) allows personal service of documents except where an address for service has been provided. Here the claimant had not served written notice of acceptance on the defendant’s address for service before the offer was formally withdrawn. The court refused the claimant’s application to dispense with service or for retrospective substituted service, as this would have given it an unfair advantage over the defendant who had complied with the rules.

Here the claimant needed the court's permission to accept the offer under CPR 36.9(3) because the trial had started, but the same principles should apply in the usual case where the court's permission is not required.