SQE2 Disputes Resolution Part 36 Flashcards

1
Q

What is a Part 36 Offer and what must it include

A

Part 36 offer is a formal offer to settle a claim designed to encourage early settlement. It is without prejudice.

Requirements
- made in Court Form or letter form
- in writing
- clearly state it is a CPR Part 36
- specify period (no less than 21 days) in which to accept
- State if it refers to whole claim or just part
- State whether offer takes into account any counterclaim

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2
Q

How are costs always divided if Part 36 offer is accepted within relevant period?

A

Generally defendant will pay cost of claim to point of acceptance on standard basis

Parties may agree otherwise

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3
Q

When can Part 36 Offer be made? When not?

A

Cannot be made in small claims

Can be made at any time including before proceedings (offeror may be awarded pre-issue costs incurred)

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4
Q

When / How can Part 36 offer be withdrawn

A

Not if accepted

In relevant period
- only takes effect at end of period unless court permission
- can still be accepted in period orbs.

After Relevant Period
- can be withdrawn of amended

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5
Q

What can offeror of Part 36 do if they withdraw before expiry of Relevant Period but notice of acceptance is given in Relevant Period

A

Offeror can apply to court in 7 days after notice of acceptance to withdraw or change terms.

Court will give permission if there has been a change to circumstances since the offer was made and it is in the interest of justice.

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6
Q

How to accept a Part 36 offer

A

Acceptance must be in writing

Can be accepted at any time (even after expiry) so long as offeror has not withdrawn.

Permission needed from judge if:
- during trial; or
- C accepting from one of multiple Ds

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7
Q

Acceptance of claimants part 36 offer by defendant?

A

Within Relevant Period
- D to pay costs up to date acceptance on standard basis

After Relevant Period
- Court to decide liability of costs (unless parties agree otherwise)

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8
Q

Acceptance of Defendants Part 36 offer by claimant?

A

Within Relevant Period
- D to pay costs up to date acceptance on standard basis

After Relevant Period
- D to pay costs on standard basis only till end of relevant period
- parties to agree on cost after relevant period
- otherwise court decides (usually claimant to pay till date of acceptance)

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9
Q

Rejection of defendants Part 36 offer by Claimant?

A

If they beat the offer
- D to pay C’s costs of entire proceedings (so no effect)

Don’t beat it
- UNLESS court finds it unjust
- D to pay on standard baiss untill expiry of relevant period (deemed + 21 days)
- C to pay D costs on standard basis from date of expiry of Relevant Period (deemed + 21 days)
- D may also be awarded interest on those costs

Offer is same as result
- treated as failed to beat

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10
Q

Rejection of claimants Part 36 offer by Defendant?

A

C Fails to beat own offer
- 36 offer has no effect

C beats or matches own offer
- D to pay costs on standard basis till end of relevant period
- D to pay costs after relevant period expired on indemnity basis with enhanced interest
- Additional interest on all damages after relevant period
- may also get additional amount of damages

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11
Q

What will courts consider when assessing is sanction for rejecting a Part 36 offer are unjust?

A

Court to account of all circumstances of case including:
- The terms of any Part 36 offer,
- stage in proceedings (the later the more reasonable)
- information available to parties when offer is made
- conduct of parties with regard to giving/refusing to give info for purposes of enabling offer to be made/evaluated
- whether offer was genuine attempt to settle proceedings

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12
Q

How can you seek clarification on Part 36 offer?

A

If offer is unclear the offeree can request clarification within 7 days.

If no response in 7 days offeree can apply to court to make offeror clarify.

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13
Q

What sanctions for rejecting a part 36 offer can be diss-applied for being unjust?

A

The sanctions imposes if claimant beats own part 36 offer (which was rejected obvs)

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14
Q

How are additional damages awarded for defendant rejecting Part 36 offer? (Damages Only or Mixed Claims )

A

Damages Only or Mixed Claims
- is percentage of damages max of £75k

Amount
- 10% up to £500k
- 5% of anything exceeding £500k

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15
Q

How are additional damages awarded for defendant rejecting Part 36 offer? (Non-Monetary claims)

A

Non-Monetary claims
- percentage of costs court has ordered defendant to pay
- capped at £75k

Amount
- 10% up to £500k
- 5% on anything above £500k

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16
Q

Can you accept part 36 offer during trial?

A

After trial has started only with the permission of the court

17
Q

Can a claimant accept a Part 36 offer from 1 defendant in a case where there are multiple defendants?

A

Only with court permission