Extending the time for acceptance of a Part 36 offer – Begum v Barts Health NHS Trust
In the case of Mrs Halima Begum (a protected party by her litigation friend Mr Farid Akhta) v Barts Health NHS Trust [2022] EWHC 1668 (QB), the claimant asked the court to extend the time for acceptance of the Defendant Part 36 offer from 3 March 2022 to 24 December 2022.
The court explored whether they had jurisdiction to make such a direction. The claimant relied upon comments made in RXL (A protected party by her litigation friend) v Oxford University hospitals an HS foundation trust [2021] EWHC 1349 (QB), as well as the courts power under CPR 3.1 (2)(a) to extend or shorten the time for compliance with any rule, practice direction or court order.
The defendant made a Part 36 offer in the sum of £100,000 gross of recoverable benefits, which expressly stated that the defendant would be responsible for the claimant’s costs if accepted within 21 days of service. Included in the terms of the offer was the provision that if accepted after that, liability for costs must be agreed between the parties or decided by the court. The defendant had admitted breach, but denied causation, with all aspects of loss and damage not admitted.
The claimant considered it impossible to quantify the claim without further expert evidence or advise the court of the value or reasonableness of the claim. This was of particular importance because they were a protected party and therefore the settlement required approval by the court. Consequently, the claimant considered that an extension of time for acceptance of the Part 36 offer was warranted, and because of that, a request to extend the time for acceptance was requested, which the Defendant refused. The Defendant had made it clear at that stage that the offer remained open for acceptance and did not at that moment have any instructions to withdraw.
The claimant accepted that there was no express provision for the court to vary a Part 36 offer, however argued that the court did have jurisdiction because the rules provided no express prohibition against the court doing so. The Judge dismissed this on the basis that Part 36 is a procedural, self-contained code.
Master Thornett made reference to several cases and was satisfied that none of these allowed the court to extend the relevant period for acceptance of a Part 36 offer. He further found that the comments made in RXL were entirely obiter dicta and concluded that:
“I am not satisfied there is any inherent provision in Part 36 for the court to vary or rewrite the period for acceptance of a Part 36 offer. If there is no such procedure, it follows that neither (at least within Part 36) can there be provision for the court to direct in advance the costs consequences of accepting an offer as rewritten by it”.
As an alternative to the claimant’s primary submission that the court had jurisdiction under Part 36 to vary the terms of the order, the claimant submitted that the court had the power to do so in accordance r3.1(2)(a). There was no supporting case law and Master Thornett dismissed this submission, repeating that Part 36 was a “self-contained” code and commented:
“whilst the form and content of the offer are subject to rules, there is no rule as to when an offer should be accepted, only rules going to the consequences of not doing so.”
Master Thornett dismissed the application on the grounds that the court had no jurisdiction to make the Order requested or any similar such order. Consequently, the court found that they had no jurisdiction to extend the time for acceptance of a Part 36 offer.
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Published 14 July 2022
