Chapter 12: Settlement Flashcards
(28 cards)
When can a Part 36 offer be made?
At any stage of the proceedings
What are the five requirements that make a valid Part 36 offer?
In writing, made pursuant to Part 36, specify a period of at least 21 days within which the D will be liable for the C’s costs if the offer is accepted, state if it relates to whole/part of the claim and whether it considers any counterclaim
What are the two further rules that apply to a D Part 36 offer?
Must be an offer to pay a single sum of money and pay all or part of the sum within 14 days following acceptance (offeree can accept a later date) otherwise claimant can enter judgment
What is the prescribed form for Part 36 offers?
N242A
When is a Part 36 offer made?
When it is served on the offeree
What options does the offeree have?
Accept or reject offer, seek clarification or the offer lapses
When can an offer be withdrawn?
If the offer has been accepted, cannot withdraw. If trial has started, need court’s permission. If relevant period has expired, an offer can be withdrawn or altered - changes during the period take effect at the end of the relevant period
How long does an offeree have if he wishes to clarify an offer?
7 days from service
When will a court allow for an offer to be withdrawn or altered after it has been accepted?
If there has been a change in circumstances or in the IOJ, the offeror has 7 days from acceptance to do this or before the first day of trial if earlier
How can a Part 36 offer be accepted?
By serving written notice of acceptance and by filing at court
What are the cost consequences of accepting an offer in the relevant period?
Claimant entitled to its costs up to the date of notice of acceptance served
What are the cost consequences of accepting an offer outside the relevant period?
Parties can agree but if not the court has to order (unless in IOJ) that the claimant be awarded costs up to the date of expiry of the RP and offeree to pay C’s costs from expiry of the RP to date of acceptance
What are the cost consequences of accepting an offer which was made less than 21 days before trial?
If the parties do not agree liability on costs, the court determines liability
What are the cost consequences of accepting an offer which relates to part of a claim only?
If the C abandons the remainder of the claim, it will only be entitled to costs relating to the part of the claim in the offer, If doesn’t abandon, the parties can agree between themselves or if not, the court determines
What is the ‘trigger’ when considering defendant offers which were not accepted?
The trigger is where the claimant fails to obtain a judgment higher (in money terms) than the defendant’s Part 36 offer
How is interest calculated on the Part 36 offer?
The Part 36 offer is deemed to include interest up to the end of the RP. When comparing, it is the sum set out in the Part 36 offer which is compared to the combined quantum of judgment plus interest
What are the cost consequences where the C’s final judgement is less than or the same as the D Part 36 offer or the final judgment is made in favour of the D?
D gets its costs from expiry of the RP plus interest. C may also get its costs from end of RP - split costs order
In regards to an offer made by the C, what is the trigger?
The C does the same or better at trial than its own Part 36 offer
What are the cost consequences on the D if the C does the same or better at trial than its own Part 36 offer?
Interest on the award (at a rate not exceeding 10% above base rate) for some or all of the period from the expiry of the RP, costs from the end of the RP assessed on the indemnity basis plus interest (not exceeding 10% above base rate) and an additional amount of 10% up to £500,000 and 5% above £500,000 (total amount is capped at £75,000)
How are these cost consequences different if the claim is a non-monetary claim?
The additional amount is calculated using the total amount of costs awarded to the C as the figure instead of the award
What factors does the court consider when deciding what is unjust?
Terms of a Part 36 offer, the stage of proceedings the offer was made, information available to the parties at the time, conduct of the parties and whether it was a genuine attempt to settle
What is the effect of an offer made within 21 days of trial?
No Part 36 consequences unless the court shortens the RP
Where is a settlement recorded?
In a consent order which is agreed between the parties and then made after approval by the court - this disposes of the proceedings
What are the two types of consent order?
One which is based on contract (a Tomlin order) and one not based on contract (parties agreeing the terms of settlement in the claim)
