Practice

Compromise offer marked 'without prejudice save as to costs' rejected - subsequent open offer met with counter- offer - original without prejudice offer not remaining open for acceptance under CPR Part 36Pitchmastic Plc v Birse Construction Ltd: QBD (Dyson J): 19 May 2000

The defendants' solicitors, a day before the trial, faxed a letter marked 'without prejudice save as to costs' to the claimants' solicitors offering to compromise the claim.

The offer was rejected.

During the trial the defendants made an open offer of similar amount, but after the claimants responded to it seeking more money the defendants withdrew the offer.

After reading an unfavourable draft judgment, the claimants, applied to accept the original 'without prejudice' offer, on the basis that although the open offer, once rejected by the offeree, had elapsed the 'without prejudice save as to costs' offer was an offer under CPR part 36 which was open for acceptance for 21 days and thereafter remained open for acceptance with the permission of the court.Richard Harding (instructed by Nabarro Nathanson) for the claimants.

Andrew Goddard (instructed by Masons) for the defendants.Held, rejecting the application, that since CPR r.36.5(8) expressly contemplated that a part 36 offer might be withdrawn and there was no requirement that a party who had made a part 36 offer should seek the permission of the court before withdrawing it; that since r.36.1(2) expressly contemplated the party making an offer to settle in whatever way he chose, the question of whether there was a compromise in a pending litigation should be decided by the ordinary rules of offer and acceptance and not by any special rules; and that the defendants had withdrawn the offer before the claimant had accepted it.