Thewlis v Groupama Insurance Company Ltd

Civil Procedure Rules 1998, Part 36 is a self-contained and prescriptive procedural code. An offer must comply with its mandatory formal requirements to obtain the consequences of Part 36. A letter which refers to Part 36 but omits the required statement that it is intended to have Part 36 consequences is not a Part 36 offer. An offer which purports to lapse after 21 days, or to remain open only subject to conditions inconsistent with Part 36, is likewise invalid as a Part 36 offer.

The claimant had made a settlement offer before proceedings were issued. The letter referred to Part 36, stated that it remained open for acceptance for 21 days, and provided that thereafter it could be accepted only if the parties agreed costs or the court gave permission.

The defendant purported to accept the offer more than three years later, after proceedings had been issued and listed for trial. The defendant applied for a declaration that the proceedings were stayed under rule 36.11. The issue was whether the original letter was a valid Part 36 offer.

1. Application dismissed. The claimant’s letter was not a Part 36 offer, and the defendant’s purported acceptance did not engage rule 36.11. The defendant was ordered to pay the costs of the application.
2. Part 36 is a self-contained and highly prescriptive code. Its formal requirements must be complied with before the special consequences of Part 36 arise. The court should not import technical contractual rules into the code, although ordinary concepts of offer and acceptance form part of its context.
3. Rule 36.2 used mandatory language. The letter did not state on its face that it was intended to have the consequences of Part 36. References to Part 36, payment of costs, inclusion of interest, and settlement of the whole claim did not cure that defect.
4. The court followed the approach in Huntley v Simmonds and Carillion v PHI Group, treating non-compliance with the prescribed requirements as fatal to Part 36 status. The fact that the defect might be described as technical did not alter the result.
5. The clause stating that the offer could be accepted after 21 days only by agreement on costs or with the court’s permission was inconsistent with Part 36. A Part 36 offer remains open after the relevant period unless withdrawn in accordance with the rules. The court distinguished C v D, where the words that the offer was open for 21 days were construed consistently with Part 36, because the present letter contained an additional clause purporting to limit later acceptance.