Q&As

A claimant makes a without prejudice offer to a defendant. The defendant has seven days to accept this. The defendant accepted the offer after two weeks. If the claimant is still happy to keep the offer on the table, how should the claimant reply to the defendant? If the claimant does not revert to the defendant at all, but is happy to keep the offer on the table, is there an agreement?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 27/01/2021

The following Dispute Resolution Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • A claimant makes a without prejudice offer to a defendant. The defendant has seven days to accept this. The defendant accepted the offer after two weeks. If the claimant is still happy to keep the offer on the table, how should the claimant reply to the defendant? If the claimant does not revert to the defendant at all, but is happy to keep the offer on the table, is there an agreement?

This Q&A assumes that the circumstances do not involve the making and acceptance of a Part 36 offer (for which different rules will apply).

Without prejudice offers (and in particular without prejudice save as to costs offers, also known as Calderbank offers or letters) are a common way of seeking to compromise a case. The label of without prejudice means that the terms and contents of any proposed offer cannot be raised in court (save, in respect of offers made save as to costs, in respect of costs arguments) meaning that a party wishing to seek a settlement can make proposals safe in the knowledge that their position will not be weakened by a willingness to compromise on what is sought or what is claimed.

A without prejudice offer is different from an offer made pursuant to CPR 36 which, although such offers are themselves without prejudice, are governed by the self-contained procedural code contained within that part. CPR 36 contains express provisions r

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