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Not only must the nature of the offeror's case be clear (from correspondence, the
pleadings, any affidavits filed and so on), the precise nature and terms of his
sanctioned offer must also be clear. In the CPR, this is provided for by rules defining
the formal requirements and mandatory contents of any sanctioned offer and also
enabling the offeree, within 7 days of a Part 36 offer or payment being made, to
request the offeror to clarify the offer or payment notice.
It would accordingly be a mistake for a Hong Kong party to believe that his sanctioned
offer carries the relevant consequences if it was made without properly apprising the
other side of the nature of his case. He may not be required by the rules to take on the
burdens of pre-action protocols in general, but, if he wishes to avail himself of the
benefits of sanctioned offers and payments, he must ensure that he has nevertheless
fairly acquainted the other side with all material aspects of his case.
If a case is initially insufficiently pleaded and if it is only by a later amendment that a
party's true case is revealed, it is likely that any costs or interest consequences to flow
from the other side's rejection of a sanctioned offer would be confined to the post-
amendment period, depriving the offer of any prior effect. This situation arose in
Factortame Ltd v Secretary of State for the Environment, Transport and the Regions
[2002] 1 WLR 2438, where Waller LJ explained the court's discretionary approach in
such circumstances as follows :-
"It seems to me that so far as possible the judge should be trying to assess who in reality is
the unsuccessful party and who has been responsible for the fact that costs have been incurred
which should not have been. It is plainly right that a full scale trial examining privileged
material, and listening to ex post facto justification should be avoided. ......
The starting point is that a claimant who fails to beat a payment in will prima facie be liable
for the costs. An amendment may be of such a character that a judge will feel that the onus
should be firmly placed on the defendant to persuade him that the prima facie rule should
continue to apply; on the other hand the judge may be quite clear by reference to his feel of
the case that the amendment is being used as an excuse to take money out of court that should
have been accepted when originally made. Some cases will lie between the two extremes,
and the judge will have to adjust his assessment to give effect to possibilities which it would
be inappropriate to try out and thus by reference to his overall view of the case."
Notes
CPR 36.9. If there is failure to clarify, the court can be asked to order clarification, and then to fix
the date when the Part 36 offer is to be treated as having been made.
At § 27.
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