Offer & Acceptance

I have long held the view that where a part 36 offer is made and payment is received for the amount offered, then there is a concluded agreement. This view has been unchallenged until recently when my opponent decided to argue that there was no concluded agreement and that we were not entitled to costs.

 

Consideration of case law appears limited. On the one hand is Moriera v Grinch where HHJ Stewart spent a long time on the point and found that a claim for liquidated damages and a cheque being received does not amount to entitlement to costs, whereas in Bessant v Breheny, the Judge gave short shrift to the argument, the difference being was that the offer was made pursuant to CPR 36.

 

Low and behold, my belief was restored when the DJ confirmed that a cheque is a written document and so can be construed as acceptance in writing of a part 36 offer. The deciding factor is if there is any correspondence immediately afterwards indicating otherwise, then the answer may be slightly different..

 

Moral of the story is get the offer and basis of settlement right at the time.

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