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What is the status of a withdrawn Part 36 offer? It does not take effect under Part 36 but can be considered under CPR 44.3(c) ‘any…admissible to settle …which is not an offer to which costs consequences under Part 36 apply.’

In this case, Lewison L.J. said,

‘14. I begin with the effect of the withdrawn offers of April and November 2007. It is clear from CPR 36.14(6)(a) that the automatic consequences attaching to a subsisting Part 36 offer do not apply to an offer that has been withdrawn. Such an offer falls within CPR 44.3 , which requires the court to take into account any admissible offer to settle. The effect of a withdrawn offer was considered by this court in Trustees of Stokes Pension Fund v Western Power Distribution (South West) plc [2005] EWCA Civ 854; [2005] 1 WLR 3595 . In that case Dyson LJ, with whom Auld LJ agreed, said:
“If a claimant should have accepted an offer within 21 days then on the face of it the consequence should be that he is entitled to his costs up to the date when the offer should ordinarily have been accepted and the defendant is entitled to his costs thereafter. Usually the mere fact that an offer is withdrawn after the date when it should have been accepted should not lead to a different result.”
He added in para 43:
“There may be circumstances where the court holds that the claimant acted reasonably in not accepting the offer within the 21 day period and where the offer was withdrawn before the time when the claimant should have accepted it. In that situation the withdrawal of the offer may have a very real effect on the order that should be made in respect of costs but that is very different from the present case.”’

There is an unreported decision of the Court of Appeal in Thakkar v Patel (26th January 2017) which appears to reach the same conclusion. Once the judgment is available it will be posted to this blog.

Note Stokes was decided under the old version of the rules.

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