Bentley Design Consultants Ltd v Sansom

A Part 36 offer remains a matter of construction, read in the context of Part 36 as a self-contained procedural code. An offer to settle the whole of an existing claim does not automatically extend to a distinct claim later added to the proceedings, particularly where the parties have treated the claims as separate and they concern separate contracts and properties. Amendment of the pleadings may make the original claim part of a wider claim in the action, but it does not alter the offer’s meaning. If the offeror intends its scope to change, the offer should be withdrawn or varied under Part 36.

The claimant owned two properties and brought proceedings concerning structural engineering services supplied by the defendant. The original proceedings concerned defects and losses relating to Plot 1. The claimant later added a distinct claim concerning Plot 2. Before that amendment, the claimant had made a Part 36 offer to settle the whole of this claim for £25,025.

The defendant purported to accept the offer after the Plot 2 claim had been added. The Exeter County Court held that the offer compromised only the Plot 1 claim. Bentley appealed, arguing that the offer extended to the whole claim as it stood when accepted.

1. Appeal dismissed. The Part 36 offer dated 23 April 2015 compromised only the claim relating to Plot 1. It did not compromise the distinct claim relating to Plot 2.
2. The meaning of a Part 36 offer is a matter of construction. Part 36 is a self-contained code, and its contractual background does not import all the rules of offer and acceptance. The court must read the offer in its objective context, while giving proper weight to the certainty and effectiveness required by Part 36.
3. An offer to settle the whole of a claim may, in an appropriate case, extend to the whole claim made while the offer remains open. That may include an increased valuation, an additional head of damage, or a further cause of action concerning the same subject matter. The offeror can withdraw or vary the offer if that result is not intended.
4. The present case was materially different. At the date of the offer, the only extant claim concerned Plot 1. The parties had consistently treated the Plot 2 matter as a separate claim, arising under a separate contract and concerning a separate property. The later joinder of Plot 2 into the existing proceedings was a matter of procedural convenience. It did not transform the earlier offer into an offer to settle that distinct future claim.
5. The phrase the whole of this claim therefore referred to the entirety of the Plot 1 claim as it existed when the offer was made. Following amendment, the offer became an offer to settle that claim, then forming part of the wider proceedings, but its terms did not change.
6. Section 35(1)(b) of the Limitation Act 1980, which provides for relation back for limitation purposes, did not operate for all procedural purposes and did not alter the construction of the offer.

The order of the Exeter County Court was upheld in substance. The Plot 1 claim was stayed on payment of £25,025; the Plot 2 claim was not compromised or stayed.

1. High Court (Technology and Construction Court) — [2018] EWHC 2238 (TCC): appeal dismissed.
2. Exeter County Court — On 26 January 2017, His Honour Judge Cotter QC held that acceptance of the Part 36 offer compromised only the Plot 1 claim and did not compromise the Plot 2 claim.