Part 36 Cases :Thewlis V Group Ama Insurance Company Ltd
Part 36 Cases : Norman Leigh Thewlis V Group Ama Insurance Company Ltd( EDWHC 3 ( TCC ))
This case follows a series of Part 36 cases which illustrate the strict requirements of part 36. An offer letter was made by the claimant by a letter of the 24th September 2008 prior to the issue of proceedings.That offer was rejected by a letter of 1st October 2008.
Proceedings were issued and the Defendants sort to accept the offer on the 17th October 2011.
The Claimants unusually sort to argue that the Part 36 offer was not a valid one.The issue was whether the Claimants had made a valid Part 36 offer capable of acceptance.
The Claimants argued that the letter had omitted to state that the letter had the consequences of part 36 and further because it was inconsistent with Part 36 as it could only be accepted “if we agree the liability for costs or the court gives permission”
The Defendants argued that it was plainly intended to be a part 36 offer whilst it didn’t expressly say it was a part 36 offer it was plain to that effect.
Part 36. 1 (2) states
” Nothing in this part prevents a party making an offer to settle in whatever way he chooses but if the offer is not made in accordance with rule 36.2 it will not have the consequences specified in rules 36.10, 36.11 and 36.14.”
further Part 36 .2 (2) states
“a Part 36 offer must a) be in writing, b) state on its face that it is intended to have the consequences of Part 36, c) 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, d) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue and e) state whether it takes into account any counter claim.”
The Judge refused to accept the Defendants argument, part 36.2 uses the words must, a failure to comply is fatal.
It would be sensible in such a situation to check that the Part 36 complies and then point out any procedural defect to the other party.