Flynn v Scougall: CA 13 Jul 2004

The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
Held: The rules did not spell out the answer. The defendant could have made an urgent application not on notice, but had not done so.
May LJ said: ‘There is no need for an unseemly rush to establish procedural advantage. If, exceptionally, the defendant wishes within the 21 days to withdraw or reduce a Part 36 payment, he should apply for permission to do so and inform the claimant of his application. If the claimant wishes to accept the Part 36 payment within the 21 days without permission, he should give the requisite written notice of acceptance. The stage is then set for the Court to decide the defendant’s application in the light of the claimant’s notice of acceptance.’


Lord Justice May Lord Justice Brooke Potter, Lord Justice Potter


[2004] EWCA (civ) 873, Times 21-Jul-2004, [2004] 1 WLR 3069




Civil Procedure Rules 36


England and Wales


CitedScammell and Others v Dicker CA 21-Dec-2000
A part 36 offer can be withdrawn at any time before it is accepted or expires. The rules can not force an offer to be left open. Clear words would have been required within the rules to impose such an obligation. The actual words referred to offers . .
CitedCumper v Pothecary 1941
The court considered the nature of a payment into court: ‘there is nothing contractual about payment into court. It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, . .
CitedMartin French v Kingswood Hill 1961
A payment into court is subject to the terms of the relevant rules: ‘a payment into court is simply an offer to dispose of the claim on terms. If the defendant were free to formulate the terms himself, he could make his offer in whatever form he . .
DsitinguishedChainrai v Boston 11-Jul-2002
. .
ApprovedManku v Seehra OR 1987
The defendant had made a payment into court in the light of a joint experts meeting. In the light of the opinion of another surveyor, he sought leave to withdraw his notice of payment in. The plaintiff gave notice accepting the payment in on the . .
DoubtedChainrai v Boston 11-Jul-2002
. .

Cited by:

CitedCrouch v King’s Healthcare NHS Trust CA 15-Oct-2004
The defendants sought approval of their practice of making a written offer to the claimants rather than making a payment into court. The offer had been accepted but only after the defendant had purported to withdraw it.
Held: ‘it certainly is . .
CitedEvans v Royal Wolverhampton Hospitals NHS Foundation Trust QBD 8-Oct-2014
The court was asked whether a party who requires the court’s permission to withdraw a Part 36 offer may be granted such permission on the basis of information and for reasons not disclosed to the party to whom the offer was made.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules

Updated: 11 June 2022; Ref: scu.198715