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The Discount Rate and Part 36 Offers – Petar Starcevic

We all know that the change in the discount rate from 2.5% to -0.75%  the value of future losses in PI claims have gone through the roof. All solicitors should have reviewed their cases and in particular cases where they have made part 36 offers. Defendants will snap up offers, which now appear attractive in the light of the discount rate change and claimants may be left short. CPR part 36 is a self-contained code for offers and their effects. CPR 36.9 provides for the withdrawal or changing of a part 36 offer: an offer may be withdrawn or changed by serving written notice of the withdrawal on the offeree and such notice takes effect when it is served on the offeree. Remember that the effect of Section III of CPR 6.20(1)(d) and para.4.1(1) of the Practice Direction is that service by fax or other means of electronic communication is permitted but only where the receiving party had indicated in writing that they are willing to accept service by such means. In Thompson v Reeve (24.3.17 Lawtel) upon announcement of the discount rate change on 28 February C purported to withdraw its existing part 36 offer by email. Then D, by fax on 2 March purported to accept the offer by fax. D’s solicitors had not indicated that it was willing to accept service by electronic means so service of the notice of withdrawal was not valid. C applied to remedy the defect by relying on CPR 3.10, which is the general power of the court to remedy an error of procedure. D argued that CPR 36 was a self-contained code and could not be remedied under CPR 3.10. Master Yoxall held in favour of the claimant and granted relief under CPR 3.10. It was important that it was not disputed that D’s solicitors had actually received the email withdrawing the part 36 offer. The lessons are:

(1) Review your cases and part 36 offers without delay;

(2) If you serve notice of withdrawal or acceptance do so within the rules, especially if by email or fax.

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