Part 36 offers Flashcards
(27 cards)
Rationale of a Part 36 offer
parties who make realistic proposals to settle actions should get some benefit if these are not accepted and it turns out, at trial, that they should have been accepted
When can a Part 36 offer be made?
at any stage of proceedings
Calderbank offer
An offer, usually made in writing, and written ‘without prejudice save as to costs’. It cannot be referred to the judge until costs are considered after trial, but at that point can be relied upon. Such an offer does not need to comply with Part 36.
When will the court have regard to a Calderbank offer?
when it exercises its discretion on costs
Part 36 offer requirements
be in writing, state that Part 36 applies, state the “relevant period” for which defendant is liable for claimant’s costs if accepted (not less than 21 days), state whether it relates to whole or part of a claim and any counterclaims
Relevant period for Part 36
A period of minimum 21 days, specified in a Part 36 offer, within which the defendant will be liable for the claimant’s costs if the offer is accepted.
How can a Part 36 offer be made?
by letter or prescribed form N242A
When is a Part 36 offer made?
when it is served on the offeree
The offeree can seek clarification of the terms of the Part 36 offer within
7 days of service
Can you withdraw a Part 36 offer that has been accepted?
No
Can you withdraw a Part 36 offer once the trial has started?
only with the court’s permission
Can you withdraw a Part 36 offer if the relevant period has NOT expired?
any notice of withdrawal/change during the relevant period will expire at the end of the relevant period
A Part 36 offer remains open for acceptance unless
it has been withdrawn
If a Part 36 offer includes an offer to pay / accept a single sum of money, the defendant has how long to pay?
defendant has 14 days from acceptance to pay the settlement amount agreed unless otherwise agreed in writing
If Part 36 is accepted before the expiry of the relevant period, what payment is the claimant entitled to?
costs of the proceedings up to the date the notice of acceptance was served on the offeror
Cost consequences of acceptance outside the relevant period
claimant will be awarded costs up to the date the relevant period expired; BUT
the offeree will pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance
Special rules for cost consequences apply where the offer was made
less than 21 days before trial
Consequence if a claimant rejects a Part 36 and fails to obtain a judgment more advantageous than the offer
a penalty will be imposed on the claimant for not accepting it
When is the comparison in money terms between trial outcome and offer made?
at the date of judgment
Does a Part 36 offer include interest?
Yes, up to the end of the relevant period
split costs order
the defendant loses but claimant wins less than Part 36 offer - defendant pays claimant’s costs during relevant period BUT the claimant pays defendant’s costs from the date the relevant period expired; and
Interest on those costs
claimant obtains a judgment ‘at least as advantageous’ as its offer, which the defendant rejected
claimant gets:
a) indemnity costs from end of relevant period
b) interest on those costs up to 10% above base rate
c) interest on damages up to 10% above base rate
(all unless unjust)
d) C is awarded an additional amount based on a percentage of the award
The Part 36 consequences also do not apply if:
The Part 36 offer was withdrawn; or
The Part 36 offer was changed so that its terms are less advantageous to the offeree and the offeree has beaten the less advantageous offer.
If a party wants to get the full costs protection of Part 36, it should
Make the Part 36 offer more than 21 days before trial and
Leave the offer open (not withdraw it).
