Laura Hibberd on Withdrawal of Part 36 Offers by email: Thompson v Reeve & Ors

Following the change in the discount rate earlier this year to -0.75% many Claimants will seek, or indeed have sought, to withdraw Part 36 offers previously made. The case of Thompson v Reeve, heard on 20^th March by Master Yoxall, considered whether a Part 36 offer could be withdrawn by email.

The case concerns a claim for compensation for personal injuries following a road traffic accident in 2008. The Claimant was then 14 years old and there had also been negligent treatment of her injuries. Judgment has been entered against the MIB and Mid-Essex Hospital Services NHS Trust (the Second and Third Defendants).

On 24^th August 2016 the Claimant made a Part 36 offer to settle the claim and on 28^th February 2017 emailed the Defendants to withdraw that offer. The email stated the offer was withdrawn in accordance with CPR 36.9(2). Undoubtedly this was prompted by the reduction in the discount rate announced on 27^th February, and many other Claimants may be in a similar position with Part 36 offers still on the table. The Defendants purported to accepted the Part 36 offer by fax and DX on 2^nd March 2017 i.e. after the attempted withdrawal.

At a hearing on 20^th March the Claimant sought to withdraw the Part 36 offer and for the order to reflect that the offer was deemed to have been withdrawn on 28^th February. The relevant provisions are set out in CPR 36.9 and state that offers can only be withdrawn by serving written notice. The issue here was that the withdrawal had been sent by email and thus not in accordance with the rules on service (CPR 6.20 and PD 6A para 4.1): this was because the Defendants’ solicitors had not indicated they would accept service by email.

It was accepted by the Claimant that the service was not in accordance with CPR 6.20. However, it was argued that CPR 3.10 applies and therefore the court is able to rectify that error (also see Integral Petroleum SA v SCU-Finanz AG [2014] EWHC 702 (Comm)). By contrast, the Defendants argued that Part 36 has its own “self-contained code” and thus CPR 3.10 does not apply.

Master Yoxall accepted the Claimant’s submissions. He found that the Claimant did give notice in writing and it was not disputed that the email was received, thus the Defendants had all the information necessary. CPR 3.10 could be used to cure that defective service, as it had ‘wide effect’. Master Yoxall did not accept that Part 36 is entirely freestanding, particularly as Part 6 rules for service were in fact relied on by the Defendants. Master Yoxall also concluded that “it would not be just or consistent with the overriding objective that a technical breach of the rules should impede the proper assessment of damages in this case”.

This is a useful case for practitioners facing such problems following the changes to the discount rate. Naturally, service should be in accordance with the rules, however, if a situation similar to this arises it appears it can be remedied by promptly making the relevant application under CPR 3.10. It could perhaps be inferred that had the email sent by the Claimant’s solicitors not contained sufficient information regarding the withdrawal or perhaps the Defendant did not accept receiving it then a judge may have a different view of the application.