Settlement

Question 1

Part 36 offer must:

Answer 1

a) Be in writing;
b) Make clear it is made pursuant to Part 36;
c) Specify relevant period (of not less than 21 days) within which the defendant will be liable for the claimant’s costs if the offer is accepted);
d) State whether it relates to the whole or part of the claim; and
e) State whether it takes into account any counterclaim.

Question 2

two further rules that apply to defendants’ part 36 offers only:

Answer 2

a) With limited exceptions, a Part 36 offer by a defendant to pay a sum of money in
settlement of a claim must be an offer to pay a single sum of money.
b) A defendant’s offer that includes an offer to pay all or part of the sum at a date later than 14 days following the date of acceptance will not be treated as a Part 36 offer unless the offeree accepts the offer.

Question 3

Relevant period

Answer 3

A period of not less than 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.

Question 4

part 36 offer can be made at…

Answer 4

any time, including before the issue of proceedings.

Question 5

a party could make a Part 36 offer in…

Answer 5

a letter or the prescribed form, N242A.

Question 6

a Part 36 offer made when…

Answer 6

When it is served on the offeree.

Question 7

How to clarify a Part 36 offer?

Answer 7

offeree can seek clarification of the terms of the offer, for example a breakdown of
the components of the offer, within 7 days of service.

Question 8

If the offer has already been accepted it cannot be…

Answer 8

withdrawn, or its terms changed.

Question 9

If the trial has already started…

Answer 9

the court’s permission is required to withdraw the offer.

Question 10

if relevant period has expired, offer can be…

Answer 10

withdrawn or its terms changed without the court’s permission.

Question 11

if relevant period hasn’t expired, any notice of withdrawal / change during the relevant period will take effect…

Answer 11

at the end of the relevant period, if the offeree does not serve notice of acceptance during the relevant period.

Question 12

if relevant period hasn’t expired and they do serve notice of acceptance during it (despite the notice of withdrawal / change) then the offeror can either…

Answer 12

allow the acceptance or apply to the court for permission to withdraw the offer or to change its terms. (must be done within 7 days of the notice of acceptance or if earlier before the first day of the trial).

Question 13

court may give permission for the original offer to be withdrawn or its terms changed if satisfied that…

Answer 13

there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.

Question 14

An offer remains open for acceptance unless…

Answer 14

it has been withdrawn (even after the relevant period has expired, unless offer is expressed to be withdrawn automatically
at the end of the relevant period).

Question 15

Consequences of accepting a Part 36 offer

Answer 15

-The claim will be stayed and will not continue to trial.
-For any Part 36 offer which is, or includes, an offer to pay / accept a single sum of money, defendant has 14 days from acceptance to pay unless otherwise agreed in writing (failing which claimant can enter judgement against them).
-If the Part 36 offer does not include an offer to pay / accept a single sum of money, in the event that a party fails to comply with whatever was agreed, aggrieved party can apply to court to enforce terms of the offer without the need to start separate court proceedings.

Question 16

Cost consequences of acceptance outside the relevant period

Answer 16

a) The court will determine liability for costs unless the parties agree them; BUT
b) The court must, unless it considers it unjust to do so, order that
- the claimant be awarded costs up to the date the relevant period expired; and
- the offeree to pay the offeror’s costs for the period from the date of expiry of the
relevant period to the date of acceptance.

Question 17

where an offeree accepts an offer but the offer was made less than 21 days before trial…

Answer 17

if the parties do not agree liability for costs
the court must determine liability.

Question 18

If, at the time of acceptance, the claimant abandons the remainder of the claim…

Answer 18

claimant will only be entitled to the costs relating to the part of the claim contained in the offer, unless the court orders
otherwise.

Question 19

If, at the time of acceptance, the claimant does not abandon the remainder of the claim…

Answer 19

liability for costs will be determined by the court, unless the parties can reach an agreement about the liability.

Question 20

Once a matter has been settled between the parties, it is usual for that settlement to be recorded in a…

Answer 20

consent order.

Question 21

Will a consent order based on a contract be interfered with by the court?

Answer 21

is evidence of the contract between the parties and, as such, will only rarely be interfered with by the court.

Question 22

will a consent order NOT based on contract be interfered with by the court?

Answer 22

Such an order may be altered or varied by the court.

Question 23

What is a Tomlin Order?

Answer 23

It is a type of consent order made up of 2 parts; first part is the public part and the second is the confidential part that contains the detail of the agreement reached between the parties.

Question 24

A Tomlin Order is generally used when either:

Answer 24

• the parties wish for the key settlement terms to be confidential; and/or
• when the agreed settlement terms go beyond those that the court could generally order as part of the proceedings.

Question 25

Part 1 – ‘ Tomlin Order’

Answer 25

* Looks like any other consent Order * Public * Contains actions to be taken by enforceable with a further court order the court (and enforceable by the court) eg * Stay of proceedings * Permission to apply * Detailed assessment of costs? *Any direction for payment of money out of court or the payment and/or assessment of costs must be contained in Part 1.

Question 26

Part 2 – ‘Schedule’ of Tomlin Order

Answer 26

* Generally confidential * Contains terms of agreement - enforceable with a further court order the court * Enables parties to include provisions beyond those a court could order

Question 27

Do consent orders and Tomlin Orders need court's approval?

Answer 27

Yes.

Question 28

Sometimes settlement is reached during a period when the claim has been stayed: if that is the case, then the application for the consent / Tomlin Order is treated as an application also to have...

Answer 28

the stay lifted.

Question 29

to reach an agreement in relation to an interim application the claimant would make an application to court in the usual manner but what would they do at the same time?

Answer 29

1. A consent order would be drawn up recording the agreement (an extension of 35 days) and both parties would indicate their agreement to this consent order; 2. The consent order would be filed at court – ideally when the application notice is filed, but later if necessary; 3. The applicant would usually invite the court to consider the application on paper and without a hearing.

Question 30

What is an advantage of Part 36?

Answer 30

the financial incentives contained within it are more certain than the court's general discretion and go beyond what the court can generally order.

Question 31

Part 36 is a ______________ __________ code.

Answer 31

self-contained procedural code.

Question 32

What is a Calderbank offer?

Answer 32

An offer, usually communicated in writing, and written 'without prejudice save as to costs', such that 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.

Question 33

it is usual for a settlement to be recorded in a ...

Answer 33

consent order.