Part 36 offers Flashcards
(15 cards)
what is a part 36 offer and when can it be made?
= a WPSATC offer pursuant to part 36 CPR which has cost consequences
can be made before or during proceedings (inc. appeal)
why is it important formalities are complied with and what are they?
Offer invalid if it does not meet formalities:
o Be in writing + clear it is made pursuant to Part 36
o Specify a period of at least 21 days (the ‘Relevant Period’), within which D will be liable for C’s costs
o State whether it relates to whole or part of the claim
o State whether it inc. any CC
what is the position regarding interest and the offer?
the offer is inclusive of interest until the Relevant Period expires
when does the offer take effect from?
the offer takes effect from the date of deemed service
what can the offeree do if they do not understand the offer?
offeree can seek clarification of offer within 7 days of service
how can an offer be withdrawn?
After RP = only requirement is withdrawal is in writing
within RP = in writing + only takes effect on expiry of RP + if offeree hasn’t accepted it. Otherwise, court can permit if change of circumstances + in interests of justice
how can an offer be varied?
offer more attractive = only requirement is variation is in writing (constitutes a new offer)
After RP = only requirement is variation is in writing
within RP = in writing + only takes effect on expiry of RP + if offeree hasn’t accepted it. Otherwise, court can permit if change of circumstances + in interests of justice
when can an offer be accepted and how?
An offer remains open for acceptance unless:
o It stipulates an expiry date; or
o It is withdrawn by written notice
offeree needs to serve written acceptance
what is the effect of acceptance?
Proceedings stayed + must be paid within 14 days (unless otherwise agreed)
what are the cost consequences of acceptance and how are they assessed?
Within RP = D pays C’s costs up to acceptance
After RP:
o D’s offer = D pay C’s costs up to RP expiry & C pays up to acceptance
o C’s offer = D pay C’s costs up to acceptance
Summary assessment of costs unless agreed or fixed costs apply
Costs inc. reasonably incurred pre-action costs
explain the cost consequences of an unaccepted offer when C makes the offer and obtains a judgment at least as advantageous as their part 36 offer
Damages + additional damages
Damages up to £500k D pays an additional 10% of sum awarded
Damages £500k - £1m D pays an additional 10% of the first £500k and 5% thereafter with a max of £75k
If the award is non-monetary, the ‘sum awarded’ will be the costs
Claimed interest up to RP + enhanced interest from day after expiry of RP max. 10% above base rate
Costs:
MT – indemnity
FT+IT – 35% difference between costs day after RP expiry & judgment
Interest on costs max. 10% above BR from day 22
explain the cost consequences of an unaccepted offer when C makes the offer and loses/doesn’t obtain a judgment as advantageous as their offer
the part 36 has no effect. There are no cost consequences
explain the cost consequences of an unaccepted offer when D makes the offer and wins and beats C’s offer
C pays D’s costs + 1-2% interest
explain the cost consequences of an unaccepted offer when D makes the offer and wins and but doesn’t beat C’s offer
D pays C’s costs up to RP
C pays D’s costs from day after RP + 1-2% interest
Split costs order will be awarded (i.e. both parties paying part of costs)
when might the court not impose the cost consequences?
The court need not impose the cost consequences (late or unaccepted offers) if it would be unjust to do so. Relevant factors:
o Proximity of offer to trial
o Information available to make an informed decision
o Whether it was a genuine attempt to settle
