HALIMA BEGUM (A PROTECTED PARTY BY HER LITIGATION FRIEND MR FARID AKHTAR) v BARTS HEALTH NHS TRUST

A court cannot extend the acceptance period of a Part 36 offer unless the rules provide a recognised jurisdiction to do so. Part 36 is a self-contained procedural code. The general case-management power to extend or shorten time for compliance with a rule, practice direction or order does not permit the court to rewrite a period chosen by the offeror for acceptance. The parties may agree a different period, but absent agreement the court cannot compel a longer period or pre-emptively determine the costs consequences of accepting on that basis.

The claimant, a protected party pursuing a proposed clinical negligence claim, applied before issue for an order extending until 24 November 2022 the period for accepting the defendant’s Part 36 offer, with the defendant liable for costs if the offer were accepted within that period. The defendant had admitted breach but disputed causation and loss. The claimant relied on Part 36, CPR 3.1(2)(a), and comments in RXL v Oxford University Hospitals NHS Foundation Trust [2021] EWHC 1349 (QB). The central issue was whether the court had jurisdiction to vary the offer’s relevant period or direct its costs consequences in advance.

Application dismissed. The court had no jurisdiction to make the requested order or any similar order.

1. Under CPR 36.3(g), read with CPR 36.5(1)(c), the relevant period is defined by the nature and timing of the offer and by the period stated by the offeror, subject to any longer period agreed by the parties. Part 36 does not confer an express power to rewrite the offer in the absence of agreement.

2. Part 36 is a self-contained procedural code. The absence of an express prohibition does not itself create jurisdiction. A procedural power requires a recognised procedural basis within the rules.

3. CPR 3.1(2)(a) is confined to extending or shortening time for compliance with a rule, practice direction or court order. Making a Part 36 offer is voluntary and is not compliance with such an instrument. The rule therefore does not allow the court to alter the offeror’s chosen acceptance period or dictate the terms of settlement.

4. The observations in RXL v Oxford University Hospitals NHS Foundation Trust [2021] EWHC 1349 (QB), suggesting that an application might be made for an extension, were obiter and did not identify a procedural mechanism. The references in Matthews v Metal Improvements [2007] EWCA Civ 215 and Briggs v CEF Holdings [2018] 1 Costs LO 23 concerned requesting an extension from the defendant or seeking a stay, not varying the offer itself. MRA v The Education Fellowship Ltd [2022] EWHC 1069 contained no suggestion of such a right.

5. The court could decide the costs consequences after late acceptance under CPR 36.13 and CPR 36.17, but could not make an equivalent pre-emptive costs direction based on an acceptance period rewritten by the court.