The following Dispute Resolution practice note produced in partnership with Jake Coleman of Hailsham Chambers provides comprehensive and up to date legal information covering:
This Practice Note on Part 36 offers considers what happens when a Part 36 offer is responded to with a counter-offer, whether made under Part 36 or under the common law.
If you receive a Part 36 offer, you are free to make a counter-offer, whether by way of Part 36 or otherwise. The effect of making a counter-offer is discussed below.
The making of a counter-offer does not affect the validity of any existing Part 36 offer.
Under CPR 36.11(2), any Part 36 offer made to you remains open and capable of acceptance, unless the offering party serves a written notice of withdrawal (or the offer is automatically withdrawn in accordance with its terms and the deadline for acceptance expires without the offeree having served notice of acceptance, CPR 36.9(4)(b)). Consequently, if you make a counter-offer which the original Part 36 offeror rejects, you are still free to accept the original Part 36 offer provided it has not been withdrawn/expired (confirmed by the Court of Appeal in Gibbon v Manchester City Council).
For more information on withdrawing and varying Part 36 offers, see Practice Notes:
Part 36 offers—withdrawing a Part 36 offer
How do you vary a Part 36 offer?
For guidance on time-limited Part 36 offers, see Practice Note: Part 36 offers—how to make
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