Time's up: court has no jurisdiction to extend the period for accepting a Part 36 offer

This interim decision arose in the course of a clinical negligence claim in which the Claimant sought damages for an allegedly negligent delayed diagnosis.  In response to the letter of claim, the Defendant NHS Trust admitted breach but denied causation.  Around that time, the Defendant made a Part 36 offer which expressly stated that the Defendant would be responsible for the Claimant's costs if accepted within 21 days of service, as calculated to be 24 March 2022; whereas, if accepted after 24 March 2022, “liability for costs must be agreed between the Parties or decided by the Court”.

On 24 March, the Claimant asked the Defendant to extend the time for acceptance of the offer by eight months on the basis that it was impossible to quantify the claim without further expert evidence. The Defendant declined to agree the extension, but stated that the offer was not withdrawn, and so it remained open for acceptance. The Claimant applied to court for an order extending the Part 36 offer to 24 November, and that, if the offer was accepted by that date, the Defendant would be responsible for the Claimant's costs in accordance with CPR r. 36.16.

The Court refused the Claimant's application. It found that, although it was open to the parties to agree an extension of the 21-day relevant period, no such agreement had been reached here, and the court had no express power to intervene and vary or rewrite the terms of a Part 36 offer that a defendant had chosen to make.

Self-contained procedural code

The court stressed the importance of clarity and objectivity in any procedure rule, but particularly Part 36, "a self-contained procedural code about offers to settle made pursuant to the procedure set out in this Part" (CPR 36.1(1)). A procedural code intended to be "self-contained" should be taken as procedurally finite, at least for the purposes of what might be procedurally possible within it. The position would be different where, for example, the court is asked to assess the meaning or status of an offer. The court also rejected the Claimant's contention that the absence of a prohibition in the CPR automatically incorporates or assumes facility to otherwise do something; there still has to be a procedurally recognised basis.

General case management powers

The court also rejected the Claimant's alternative submission that the court had jurisdiction to vary the relevant period under its general case management power set out in CPR 3.1(2)(a), on the basis that Part 36 was a self-contained code, and CPR 3.1(2)(a) refers to the power to adjust the time for compliance rather than time periods otherwise featured in rules. Although CPR 36.5(1) engaged questions of compliance in prescribing the form and content of a Part 36 offer, compliance with rules going to form and content should not be conflated with compliance with the time for doing something. Further, although the form and content of a Part 36 offer are subject to rules, there is no rule as to when an offer should be accepted, only rules going to the consequences of not doing so.

Offer open until withdrawn

The Master noted that the wording of the draft Order sought by the Claimant was not technically accurate in seeking an extension of "the expiry of the Part 36 offer". This is because the Claimant's offer was not a time-limited offer, and as such, remained open for acceptance until expressly withdrawn (which it had not been). This addresses a common misconception about how Part 36 offers work: despite offers having to remain open for acceptance for the 21-day "relevant period" in order to attract the specific costs and other consequences set out in Part 36, that is not a deadline for acceptance. The offeree can accept the offer at any time after expiry of the 21-day period unless the offer is expressly stated to be time-limited, or has been formally withdrawn, but the costs consequences will be different. The Master in Begum therefore noted that the Claimant was in fact applying to extend the "relevant period" as defined in CPR 36.3(g) such that, during that extended period, the Defendant could not withdraw the offer and, if accepted, the Claimant would have the Part 36 costs protection. 

As well as clarifying the specific point that the court cannot extend the Part 36 relevant period, this decision is an important general reminder of how Part 36 is intended to operate, both in terms of the rules themselves, and the courts' general approach to Part 36 as a self-contained code, in contrast to other parts of the CPR.  The court's comments on there needing to be a procedurally recognised basis for doing something are also instructive.

Master Thornett also helpfully clarified the steps that a party should take if it needs more time to consider a Part 36 offer, namely:

1. try to agree an extension of the relevant period with the offeror;
   
   
2. if no extension can be agreed, try to agree a stay of the proceedings; and
   
   
3. if a stay cannot be agreed, apply to court for a stay.

It will be important for an offeree to act promptly in taking these steps.

Begum (a protected party by her litigation friend) v Barts Health NHS Trust [2022] EWHC 1668 (QB)