Part 36 isn’t a safety net for those who “take their chances”

Advocacy Manager Peter Blackmore notes Mr Justice Morgan’s brief judgment in Houghton (Stanley) v. P.B. Donoghue (Jaulage & Plant Hire Ltd & Others) [2017] EWHC 1738 (Ch) examines some of the philosophy behind CPR 36. /media/180958/Houghton-Stanley-v-PB-Donoghue-Haulage-Plant-Hire-Ltd-Ors-.pdf


Approximately 6 months before trial, the Defendant made a Part 36 offer in the sum of £330,000. The Claimant did not accept this offer and the trial began in June 2017. Midway through the trial, the Claimant’s position changed and they sought to accept the offer. Because a trial had begun, permission from the Court was required before the Part 36 offer could be accepted pursuant to CPR 36.11(3)(d). It appeared clear that the parties had seen “the way the wind was blowing” and had reversed their respective positions in respect of the Part 36 offer.


Mr Justice Morgan observed that he was, in effect, being asked to impose upon the Defendant a settlement which was no longer voluntary and that:


“the philosophy exists that where a claimant decides to take his chances with the trial and then repents of his earlier decision to turn down the offer of settlement because the trial, he thinks, is going less well or more badly than predicted, that the court will often take the view that it is not right to give permission to impose a settlement on the reluctant defendant”.


Permission to accept the offer was refused. Whilst Mr Justice Morgan was clear that there may be examples of when it would be appropriate to grant permission, it would appear that the presumption is against the offeree who wishes accept after the tide turns and in favour of the offeror who wishes to finish the fight they previously sought to avoid.   

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