G-AG made an offer pursuant to Part 36 in December 2021 (the offer was made subject to the court confirming Part 36 applied). After initially rejecting the offer (and suggesting part 36 was inappropriate as it was oppressive), G-UK accepted it in August 2022 (on the basis of avoiding further legal costs). G-AG withdrew the offer the day after acceptance and argued that its rejection by G-UK meant that it was not thereafter available for acceptance on normal contractual principles.
The administrators of G-UK and G-AG made applications regarding the validity of the Part 36 offer made by G-AG. If G-UK was correct, the main application had been settled, and should be stayed. If G-AG was correct, there was no settlement, and the parties would need to prepare for trial.
The court accepted that whilst many directions applications would not be adversarial, and therefore Part 36 would not apply, that is not a reason for a blanket exemption.
Having established that Part 36 did apply, the court considered whether G-AG’s Part 36 offer was subject to the court determining whether its application was a condition precedent of acceptance and, if so, whether it had been effectively withdrawn before a court made a determination. The court found G-AG’s position was unsustainable; it would, for example, be unworkable by reference to the relevant period (being 21 days). The withdrawal of the offer came too late. Objectively, G-AG had made an offer that was accepted by G-UK.
Laverty v Greensill Bank AG (Re Greensill Capital (UK) Ltd (In Administration)) [2023] EWHC 2429 (Ch)
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