Withdrawal of Part 36 Offer

Pitch mastic plc v Birse Construction Ltd (QBD LSG 8 June p41)

The defendants’ solicitors, the day before the trial, faxed a letter marked ‘without prejudice save as to costs’ to the claimants’ solicitors containing an offer which was rejected. During the trial the defendants made an open offer of the same amount to which the claimants responded with a counter offer seeking more. The defendants then withdrew their offer. After reading an unfavourable draft of the judgment the claimants purported to accept the original offer, arguing that it was an offer under CPR part 36 and was therefore open for acceptance for 21 days despite its purported withdrawal.