The claimants commenced proceedings against the defendants and
the defendants subsequently made an offer, purportedly in
accordance with Part 36, to settle a new claim which the claimants
intended to add but for which permission to amend the claim form
had not yet been received by the court. The claimants accepted that
offer and then abandoned the pleaded claims.
The issue in this case was whether the offer was indeed a Part
36 offer. CPR r36.2 provides that a Part 36 offer must, amongst
other things, "state whether it relates to the whole or the
claim or to part of it or to an issue that arises in it and if so
which part or issue".
The Court of Appeal has now held that this was not a valid Part
36 offer. It was said that "In civil proceedings,
claims/parts/issues can only properly be defined by reference to
the pleadings" and so a claim which has not been pleaded does
not fall within the definition of a Part 36 offer. Although Part 36
offers can be made before
