All practitioners—claimant and defendant—should appreciate the new professional negligence trap set by Gibbon...
Dominic Regan says the decision in Gibbon has set a new professional negligence trap
The authority of the year on the workings of Pt 36 is Gibbon v Manchester City Council [2010] EWCA Civ 726, [2010] All ER (D) 218 (Jun). It brings welcome clarification but then, tragically, creates new areas of uncertainty.
All practitioners—claimant and defendant—should appreciate the new professional negligence trap set by Gibbon. The claimant made a Pt 36 offer which the defendant rejected unequivocally in writing. Thinking better of it three months later the defendant purported to accept the very offer rejected.
Was this effective? The Rule declares that one can accept an offer despite having later made a counter-offer (CPR 36.9 (2). No mention is made of the ability to accept a rejected offer. The Court of Appeal held that the acceptance by the defendant in Gibbon was good. Part 36 is not a contractual animal but rather a procedural mechanism designed to promote dispute resolution. Since the offeror claimant had not withdrawn
