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It should be noted that this recommendation departs from the CPR's approach as
construed by the English Court of Appeal in Scammell v Dicker [2001] 1 WLR 631.
Where proceedings have started and a Part 36 payment into court is made, the CPR
make the court's leave a condition of the offeror withdrawing it.
However, it was
be withdrawn at any time before acceptance.
The court's reasoning was (inter alia)
as follows :-
(a)
Part 36 offers are contractual in nature and are subject to the contract formation
rules regarding offer and acceptance.
(b)
Applying those rules, a Part 36 offer can be withdrawn at any time before it is
accepted and does not have to remain open for acceptance for 21 days or any
other period.
(c)
This is in line with the provisions of the Part which merely state that the offer
has to "be expressed to remain open for acceptance for 21 days" and not that it
has actually to remain open for that period. Nor do the rules state that leave to
withdraw is required.
The decision in Scammell v Dicker is no doubt appropriate in England and Wales
since, as noted above, it is there envisaged that Part 36 offers will often be made
before commencement of proceedings and later taken into account by the court.
There could be no question of either party having to get the leave of the court to
withdraw offers before any proceedings have even been started.
Notes
Four days after being made in that case.
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