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Charles v NTL Group Ltd, Court of Appeal, 13 December 2002

2 January 2003
The issues

Part 36 – costs – offers to settle – CRU.

The facts

The Claimant brought an action for personal injuries as a result of a tripping incident in the office where she worked. The first issue was quantum. There were two subsequent issues as to costs. The first related to efforts made by the Defendant to settle and the other to conduct of the parties.


The District Judge found that the Claimant had added significantly to the costs by exaggerating her claim. That was reflected by an Order that the Claimant receive only 75% of her costs.


The Defendant’s solicitors had faxed a written offer to settle damages at £50,000.00 inclusive of interest but subject to the deduction of benefits. No valid certificate existed at that time. The offer was made pursuant to CPR 36.23 (whereby a Payment into Court is to be made no more than 7 days after receipt of the certificate) the hard copy of the letter was received on the 4 March 2002. On the 6 March the Defendant’s solicitors received the certificate and on the 8 March a cheque being the offer of £50,000.00 less the benefits. Notice of a payment was given to the Claimant’s solicitors. Increased offers were made on the telephone but no settlement was reached. On the 25 March the trial commenced. The Defendant was successful in limiting the claim to £49,231.44. The Judge therefore had to decide whether the offer made by fax was valid. If it was then the offer made had been made more than 21 days before the trial thus entitling the Defendant to costs. The Claimant’s solicitor’s letterhead made it clear that they were not willing to accept service of documents by fax. They therefore argued that the offer was therefore only made when received on the 4 March, less than 21 days before the trial. The District Judge found that the Part 36 Offer was a document requiring to be served and therefore the offer had not been made more than 21 days before the trial. The Defendant appealed.

The decision

1.Justice required the Judge to exercise his power under the Part 36.1(2) and to have ordered that the offer should have the consequences provided by Part 36.

2. Had he decided that it was inappropriate to make such an Order he should have gone on to consider the exercise of his discretion under CPR Part 44 – which should have led him to the same outcome.

3. Rule 36.1 (2) made it clear that a party was able to make an offer to settle in whatever way he chose. Once the offer was received the Claimant was in the same position as she would have been had the offer been delivered to her solicitor’s office in some other way.

4. Even had the Claimant’s arguments been correct that the offer was not made in a manner that satisfied the Rules the conclusion had to be drawn that the normal Part 36 consequences should follow.

5. However the Rules were satisfied by the way in which the offer had been delivered. It was clear from the reading of the Rules that a Part 36 Offer was effective once received by the offeree without any need for it to comply with formal provisions as to service.

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