In Gibbon v Manchester City Council, the Court of Appeal dealt with two cases. Mrs Gibbon was the claimant in a tripping case. The sequence of offers was:

1. Defendants offered £1150, which she rejected
2. She made a counter offer of £2500 plus CRU payments
3. Defendants offered £1500, which she rejected
4. Defendants offered £2500, which she rejected
5. Defendants then said they were accepting the offer she made at (2) above. The claimant's solicitors belatedly tried to withdraw the offer and said it was no longer available for acceptance.

Held, by the District Judge, the Circuit Judge and the Court of Appeal, the defendants were entitled to accept that offer because the claimant had never withdrawn it.

In L G Blower v Reeves, the defendants were in dispute with their builders who had commenced proceedings to recover unpaid money due under invoices rendered. The sequence of offers was:

1. Defendants offered £8023.14 which was rejected by the claimants
2. Defendants made a payment towards plumbing works, reducing the claim made against them
3. Defendants offered £8188.38, which the claimants rejected
4. Defendants offered £9000. Two months later they withdrew all offers except for offer number 1.
5. Defendants offered £8188.38 this time expressing it to be inclusive of interest and costs. An offer in such terms does not comply with Part 36 and is therefore not a Part 36 offer.
6. The parties failed to reach settlement. At trial the judge awarded £8375.94 plus costs. In his discretion the judge ordered the defendants to pay half the claimants' costs from a date just before the withdrawal of the £9000 offer.

Held: the only offer that had to be considered in relation to costs was offer number 1 because all other offers had been withdrawn (and one was not a valid Part 36 offer). The Court of Appeal criticised the decision in Carver which appears to give the court discretion to consider not merely the amount of the offers but the additional stress on the parties of proceeding to trial when the sum actually in dispute is relatively small.

In the words of Lord Justice Moore-Bick:

Although at first sight it may seem anomalous that a party should be able to make several offers in different terms, all of which may at any one time be capable of acceptance, that does in my view reflect both the language and the purpose of Part 36. As to the language, Part 36 is quite clear as to the manner in which offers may be made, varied and withdrawn. It does not provide that only one offer may be available for acceptance at any one time; nor does it provide that a later offer is to be treated as a varying or revoking a previous offer and it would be inconsistent with the recognition of Part 36 as a self-contained code to read provisions of that kind into it. The purpose of Part 36 is to promote settlement by encouraging sensible offers. As Mr. Plewman pointed out, every Part 36 offer carries with it certain consequences for costs linked to the date on which it is made and the financial implications vary as the proceedings progress. For example, an offer of £10,000 made at an early stage may be more valuable than an offer of £12,000 made at a later stage, depending on the amount of costs that have been incurred in the meantime and prevailing rates of interest. There is no reason why a party should not make more than one offer and leave it to the other to decide which, if any, to accept. Or, if he wishes, he may change the terms of the original offer which then continues to stand in its varied form as from the date it was originally made. I accept that in some cases there could be argument about whether a later offer was intended to vary an earlier offer or to stand alongside it. The solution, however, is for parties and their legal advisers to follow the requirements of the Rules carefully and make their intentions clear. If they do so, problems of that kind should not arise.