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The position in Hong Kong would be different. Currently, leave to withdraw a
payment into court is required under O 22 r 1(3). Since our recommendation is that
sanctioned offers and payments can in general
only be made after the
commencement of proceedings, the Working Party's view is that, as with payments
into court, leave should be required to withdraw a sanctioned offer which would
otherwise remain open for acceptance for the prescribed period.
Such an approach would be consistent with legal principle. In Cumper v Pothecary
[1941] 2 KB 58, a plaintiff wished to accept money that had been paid into court but
had failed to do so within the 7 days prescribed by the rule. He argued that since
acceptance of the offer led to the formation of a contract, the contractual rules as to
acceptance enabled him to accept the offer at any time up to the eve of the trial
notwithstanding the lateness of his acceptance and the requirement in the rules for an
order of the court. He argued that "an order from the court was mere machinery for
pay office purposes."
The Court rejected this stating :-
"The answer to his contention is that there is nothing contractual about payment into court. It
is wholly a procedural matter and has no true analogy to a settlement arranged between the
parties out of court, which, of course, does constitute a contract. When once the seven days
have expired the plaintiff can only get the money if he can obtain an order, and before the
court makes an order it must consider whether it is right so to do."
The rule envisaged in Recommendation
41 is a procedural rule of the kind
contemplated in Cumper v Pothecary, not to be displaced by the general rules on offer
and acceptance in the law of contract.
Recommendation 41: A sanctioned offer or payment should be required to
remain open for acceptance for 28 days after it is made (such 28 day period
falling before commencement of the trial), unless leave is granted by the court
for its earlier withdrawal. Thereafter, the offer could be withdrawn and if not,
would continue to be capable of acceptance.
Notes
Subject to the abovementioned exception where a specialist list pre-action protocol provides
otherwise.
At 67.
Ibid.
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