Settlement Flashcards
(114 cards)
1
Q
CPR Part 36
A
The main Civil Procedure Rule that encourages settlement through a specific type of offer.
2
Q
Purpose of CPR Part 36
A
To encourage parties to settle their disputes.
3
Q
Three key aspects of CPR Part 36
A
Describes a type of offer
4
Q
Court’s general discretion on costs (CPR 44.2)
A
The court has a wide discretion and will consider the parties’ behaviour
5
Q
Advantage of Part 36 over general costs discretion
A
Provides more certain financial incentives and goes beyond what the court can generally order.
6
Q
Central rationale behind Part 36
A
Parties making realistic settlement proposals should benefit if rejected and proven correct at trial; unreasonable parties should be penalized.
7
Q
Form of Part 36 penalty
A
Generally involves adjusting costs
8
Q
Timing of Part 36 offers
A
Can be made at any stage
9
Q
Who can make a Part 36 offer?
A
Either the claimant or the defendant.
10
Q
Example of a claimant’s Part 36 offer
A
A written offer to accept a specific sum to settle the proceedings (must comply with CPR 36.5).
11
Q
Example of a defendant’s Part 36 offer
A
A written offer to pay a specific sum to settle the proceedings (must comply with CPR 36.5 and 36.6).
12
Q
Nature of Part 36 as a procedural code
A
A self-contained code governing offers made under its procedure.
13
Q
Applicability of normal contract rules to Part 36 offers
A
Do not apply; Part 36 itself sets out the governing rules.
14
Q
Calderbank offer
A
An offer written ‘without prejudice save as to costs’ that can be referred to the judge after trial on the issue of costs.
15
Q
Key feature of a Calderbank offer regarding Part 36
A
Does not need to comply with Part 36.
16
Q
Court’s consideration of Calderbank offers on costs
A
The court will have regard to them when exercising its discretion under CPR Part 44.
17
Q
Requirement to comply with Part 36 for its specific consequences
A
The offer must be made in accordance with the rules set out in Part 36.
18
Q
Summary of Part 36’s function
A
A self-contained code describing an offer and its consequences on acceptance or non-acceptance at trial.
19
Q
Summary of Part 36’s aim
A
To encourage reasonable offers through financial incentives and penalties.
20
Q
Summary of Part 36 vs. Calderbank offers
A
Part 36 has specific consequences; Calderbank offers are considered under the court’s general costs discretion.
21
Q
CPR 36.5-36.7
A
Rules relating to making Part 36 offers.
22
Q
CPR 36.8-36.10
A
Rules relating to clarifying
23
Q
CPR 36.11-36.15
A
Rules relating to accepting Part 36 offers.
24
Q
Offeror
A
The party making the Part 36 offer.
25
Offeree
The party receiving the Part 36 offer.
26
Requirements for a valid Part 36 offer (CPR 36.5)
Must be in writing
27
Additional rule for defendant's Part 36 offer (CPR 36.6 - single sum)
Must be an offer to pay a single sum of money (with limited exceptions).
28
Additional rule for defendant's Part 36 offer (CPR 36.6 - payment date)
Offer to pay later than 14 days after acceptance is not a Part 36 offer unless accepted.
29
Relevant period
A period of not less than 21 days specified in a Part 36 offer
30
Timing of making a Part 36 offer (CPR 36.7(1))
Can be made at any time
31
Form of a Part 36 offer
Usually a letter stating it's made pursuant to Part 36
32
When is a Part 36 offer made? (CPR 36.7(2))
When it is served on the offeree (CPR 6 rules apply).
33
Effect of pre-issue Part 36 offers
Have usual Part 36 consequences (including pre-action costs) upon acceptance after issue or judgment.
34
Consequences of Part 36 offer made and accepted before proceedings
CPR 36.13 and 36.14 cost consequences have no effect as they depend on extant proceedings.
35
Clarification of a Part 36 offer (CPR 36.8)
Offeree can seek clarification within 7 days of service.
36
Withdrawal/change of accepted Part 36 offer (CPR 36.9(1))
Not allowed.
37
Withdrawal of Part 36 offer after trial has started
Requires the court's permission.
38
Withdrawal/change of Part 36 offer after relevant period (CPR 36.9(4))
Can be withdrawn or changed without court permission (can also be automatic if terms state).
39
Withdrawal/change of Part 36 offer during relevant period (CPR 36.10)
Takes effect at the end of the relevant period if no acceptance; if accepted
40
Grounds for court permission to withdraw/change offer during relevant period
Change of circumstances since the offer and it being in the interests of justice.
41
Two potential outcomes of a Part 36 offer not being withdrawn
It is accepted
42
How to accept a Part 36 offer (CPR 36.11(1))
Serve written notice of acceptance on the offeror.
43
Filing acceptance at court
Required if the case has been issued.
44
Form of acceptance
No prescribed form; a letter is sufficient.
45
Duration of a Part 36 offer (CPR 36.11(2))
Remains open unless withdrawn (even after relevant period unless automatic withdrawal stated).
46
Consequence of accepting a Part 36 offer (CPR 36.14(1))
The claim will be stayed.
47
Payment of settlement sum after accepting a single-sum Part 36 offer (CPR 36.14(6))
Defendant has 14 days from acceptance unless otherwise agreed.
48
Failure to pay settlement sum after accepting a single-sum Part 36 offer (CPR 36.14(7))
Claimant can enter judgment against the defendant.
49
Failure to comply with non-single-sum Part 36 offer acceptance (CPR 36.14(8))
Aggrieved party can apply to court to enforce terms without new proceedings.
50
Cost consequences of acceptance within the relevant period (CPR 36.13(1))
Claimant entitled to costs up to the date notice of acceptance was served.
51
Rationale for cost consequences of acceptance within relevant period
Claimant has 'won' by receiving settlement and should recover costs.
52
Cost consequences of acceptance outside the relevant period (CPR 36.13(4))
Court determines costs (unless agreed)
53
Rationale for cost consequences of acceptance outside relevant period
Claimant 'won' up to expiry
54
Cost consequences of acceptance when offer made less than 21 days before trial (36.13(4))
Court must determine liability for costs if parties don't agree.
55
Accepting a Part 36 offer relating to part of a claim (claimant abandons remainder) (CPR 36.13(2))
Claimant only entitled to costs relating to the offered part (unless court orders otherwise).
56
Accepting a Part 36 offer relating to part of a claim (claimant does not abandon remainder) (CPR 36.13(4))
Liability for costs determined by the court (unless parties agree).
57
Summary of making a Part 36 offer
Must be marked as such
58
Summary of withdrawing a Part 36 offer
Cannot withdraw after acceptance
59
Summary of accepting a Part 36 offer
Claim stayed
60
Summary of costs if accepted within relevant period
Claimant gets costs up to acceptance.
61
Summary of costs if accepted after relevant period
Court determines
62
CPR 36.17 and 36.24
Main CPR rules relating to the cost consequences of unaccepted Part 36 offers at trial.
63
CPR 44.2
CPR rule relating to the court's general approach to costs when Part 36 does not govern.
64
Central rationale of Part 36 for unaccepted offers
To benefit parties making realistic offers and penalize unreasonable parties refusing them.
65
Court's approach to unaccepted Part 36 offers at trial
Determines if a penalty should be imposed based on whether the offer should have been accepted.
66
Two categories of unaccepted Part 36 offers to consider
Defendant's offer and claimant's offer.
67
Trigger for consequences of unaccepted defendant's offer (CPR 36.17(1)(a))
Claimant fails to obtain a judgment more advantageous than the defendant's Part 36 offer (better in money terms at date of judgment
68
Consequences of unaccepted defendant's offer (CPR 36.17(3))
Unless unjust
69
Cost rules for the period before the relevant period expired (defendant's offer)
Normal costs rules (CPR 44) apply
70
Effect if the trigger for defendant's offer is not met
The defendant's Part 36 offer has no effect.
71
Trigger for consequences of unaccepted claimant's offer (CPR 36.17(1)(b))
Judgment against the defendant is at least as advantageous to the claimant as their Part 36 offer (same or better in money terms at date of judgment
72
Consequences of unaccepted claimant's offer (CPR 36.17(4))
Unless unjust
73
Calculation of additional amount (claimant's offer consequence)
10% of award up to £500
74
Consequences in fixed recoverable costs regime (unaccepted claimant's offer)
Additional costs are 35% of the difference between fixed costs at relevant period expiry and judgment date (CPR 36.24 (4) & (5)
75
Effect if the trigger for claimant's offer is not met
The claimant's Part 36 offer has no effect.
76
Overriding condition for imposing Part 36 penalties
Unless the court considers it unjust to do so (CPR 36.17(3) and (4)).
77
Factors considered when determining if unjust (CPR 36.17(5))
Terms of the offer
78
Court's discretion under 'unless unjust' provision
Much more limited than general costs discretion under CPR 44.
79
Special rule for offers made within 21 days of trial
No Part 36 consequences apply even if trigger met
80
Other situations where Part 36 consequences do not apply
Offer was withdrawn
81
Best practice for full Part 36 cost protection
Make offer more than 21 days before trial and leave it open.
82
Approach to simultaneous unaccepted claimant's and defendant's offers
Consider each offer in turn based on the judgment.
83
Outcome if judgment beats claimant's offer and is worse than defendant's offer
Claimant's offer consequences apply; defendant's offer has no effect.
84
Outcome if judgment is worse than claimant's offer and beats defendant's offer
Neither offer has any effect; costs likely under CPR 44.2.
85
Outcome if judgment beats defendant's offer and is worse than claimant's offer
Defendant's offer consequences apply; claimant's offer has no effect.
86
Summary of consequences for claimant's vs. defendant's offers
Different consequences apply.
87
Summary of trigger for consequences
Depends on comparing trial outcome to the offer.
88
Summary of penalty for claimant failing to beat defendant's offer
Claimant pays defendant's costs from relevant period expiry and interest.
89
Summary of penalty for claimant doing as well or better than own offer
Defendant pays enhanced interest
90
Summary of 'unless unjust' provision
Court can choose not to impose penalties if unjust.
91
Summary of relationship with normal costs rules
Part 36 operates alongside CPR 44
92
CPR 40 and PD 40B
Main CPR and Practice Direction supporting the content of orders following settlement.
93
Consent order
A court order reflecting the agreement of the parties
94
Two types of consent orders
Based on a contract (rarely interfered with) and not based on a contract (may be altered by the court).
95
Estoppel defence after a consent order
May be available in fresh proceedings on matters in the agreement
96
Tomlin Order
A type of consent order with a public 'order' part and a generally confidential 'schedule' part.
97
Uses of a Tomlin Order
When parties want key settlement terms to be confidential and/or when agreed terms go beyond what the court could normally order.
98
Part 1 of a Tomlin Order ('Order')
Public part resembling a regular consent order
99
Part 2 of a Tomlin Order ('Schedule')
Generally confidential
100
Location of money out of court/costs directions in a Tomlin Order (40B PD 3.5)
Must be in Part 1 (the public 'Order').
101
Putting a consent or Tomlin Order in place
Requires agreement by parties and the court's approval (application to the court needed).
102
Effect of a made consent or Tomlin Order
Takes effect like any other court order.
103
Settlement reached during a stay
Application for consent/Tomlin Order is also treated as an application to lift the stay.
104
Recording a settlement before proceedings are issued
Parties use a settlement agreement (a contract) instead of a consent/Tomlin Order.
105
Key consideration when drafting a settlement agreement before proceedings
Carefully define the scope of the dispute being settled (as no statements of case).
106
Consent orders and interim applications
Can be used to record agreement on interim matters (e.g.
107
Process for a consent order on an interim application
Agreement drawn up and signed
108
Court's obligation to approve consent orders on interim applications
Not obliged
109
Summary of orders following settlement
Judgments/orders can be made by consent at any stage.
110
Summary of consent orders
Signed by parties
111
Summary of Tomlin Order advantage (confidentiality)
Allows confidential settlement terms in a schedule.
112
Summary of Tomlin Order advantage (flexibility)
Allows settlement terms beyond a regular Consent Order's scope.
113
Summary of enforcing Tomlin Order schedule terms
Requires a further court order.
114
Summary of consent orders for interim applications
Can record agreement on interim matters.
