The general law is not always applicable in civil procedure

Part 36 and settlement

Given that part 36 has as its aim the settlement of litigation, it might be assumed that behind it lies the ordinary law of contract, or indeed that was seemingly the position until recently.

For example, in Scammell v Dicker [2001] 1 WLR 631 it was held that a part 36 offer (as opposed to a payment into court) did not exclude the ordinary law of contract and it followed that if an offer had not been accepted it could be withdrawn. This decision of the Court of Appeal was one of the first decisions to consider the new Civil Procedures Rules and its context was the question of the need for leave of the court in respect of withdrawal.

The Court of Appeal held that leave was not required. Part 36 at that time included the mechanism of payment into court and there the provisions were clear that withdrawal did require leave - a constraint therefore on the general law of contract.

However, in respect of offers, the court reasoned that these were contractual in nature and therefore governed by the ordinary rules of offer and acceptance. Two consequences flowed from that reasoning: first, that an offer could be withdrawn at any time unless it had been accepted; and second, that the relevant period required by part 36 (a minimum of 21 days during which the offer must be expressed to remain open for acceptance) did not prevent an offer being withdrawn during that period.

Altered wording

The wording of part 36 has altered since the Scammell decision, most notably by introducing provisions concerning withdrawal.

CPR 36.3 (5) provides that before expiry of the relevant period a part 36 offer may be withdrawn or its terms changed to be less advantageous to the offeree, but only if the court gives permission.

CPR 36.3 (6) provides that after expiry of the relevant period and provided that the offeree has not previously served notice of acceptance, the offeror may withdraw the offer or change its terms to be less advantageous to the offeree without the permission of the court.

As to withdrawal generally, CPR 36.3 (7) provides that the offeror does so by serving written notice of the withdrawal or change of terms on the offeree.

These provisions were fully considered in Gibbon v Manchester City Council [2010] EWCA Civ 726 where the Court of Appeal held that part 36 was a self-contained code and was not dependent upon the general principles of the law of contract. was not considered.