Should a party be able to accept a Part 36 offer once a trial has started.  This was an issue to be considered by Mr Justice Morgan in Houghton (Stanley) v P B Donaghue (Haulage & Plant Hire Limited & Others).

We have all been there, after a long haul of litigation the day of the Trial finally comes and all parties are confident in their case.  During the course of litigation Part 36 offers have been made, not accepted nor withdrawn.  We are still confident but then…

Suddenly the wind blows in the other direction, suddenly a party wishes to accept an offer he previously did not want to accept!  However, that is a change in circumstances which means that it may no longer be appropriate to allow the offeree to accept the offer that is still on the table without the Court’s permission.

When exercising his discretion in the Houghton case,  Mr Justice Morgan commented "I think that the philosophy exists where a claimant decides to take his chances with the trial and then repents his earlier decision to turn down the offer of settlement because the trial, he thinks, is going less well or more badly then predicted, that the Court will often take the view that it is not right to give permission to impose a settlement on the reluctant defendant”.

Mr Justice Morgan went on to say that this does not mean permission to accept an offer will never be given, but be warned that if left too late the chance may be lost

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Judgement available here