nbohm at ernest.net
Fri Dec 5 10:51:23 GMT 2014
On 05/12/2014 03:18, Jon Ribbens wrote:
> On Thu, Dec 04, 2014 at 07:24:09PM +0000, Nicholas Bohm wrote:
>> The Royal Mint site gives a very brief explanation, which I don't think
>> is authoritative and doesn't purport to be comprehensive.
>> The Civil Procedure Rules don't say (and wouldn't be competent to say)
>> that you cannot rely on the defence of tender unless you pay the money
>> into court: all they do is provide the machinery for payment into
>> court, without affecting the underlying law itself.
> Sorry, but that's utterly wrong. They absolutely do say that, and if
> you wish to claim that although they do say that, what they say is
> somehow invalid and inapplicable, then that would be a fairly
> extraordinary claim that would require some fairly impressive proof.
> CPR 37.2:
> (1) Where a defendant wishes to rely on a defence of tender before
> claim he must make a payment into court of the amount he says was
> (2) If the defendant does not make a payment in accordance with
> paragraph (1), the defence of tender before claim will not be
> available to him until he does so.
You're quite right - I can't see how I managed to misread it before.
As the rules are not competent to alter the common law on tender, this
strongly suggests that they reflect its existing state. In turn that
suggests it isn't a lot of practical use (which is what you have
correctly been saying).
That may explain why in the course of 40 years' of legal practice I
never came across it being used.
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