Topic 11 - Settlement

Question 1

What is the purpose of Part 36 of the CPR?

Answer 1

Encourages settlement between parties

Question 2

What does Part 36 of the CPR describe?

Answer 2

A kind of offer that a party can make

Question 3

What are the consequences if a Part 36 offer is accepted?

Answer 3

Defined financial and procedural benefits

Question 4

What happens if a Part 36 offer is not accepted and the case goes to trial?

Answer 4

Consequences depend on the trial outcome

Question 5

What is the court’s general discretion in awarding costs?

Answer 5

Considers both parties’ behavior and settlement efforts

Question 6

What is the main advantage of Part 36 compared to the court’s general discretion?

Answer 6

Provides more certain financial incentives

Question 7

What is the central rationale behind Part 36?

Answer 7

Parties making realistic settlement proposals should benefit if not accepted

Question 8

When can a Part 36 offer be made?

Answer 8

At any stage of proceedings, including before they are issued

Question 9

Who can make a Part 36 offer?

Answer 9

Either party involved in the proceedings

Question 10

What is a Calderbank offer?

Answer 10

An offer made ‘without prejudice save as to costs’

Question 11

What is the requirement for a valid Part 36 offer?

Answer 11

Must be in writing and specify a relevant period

Question 12

What is the ‘relevant period’ in a Part 36 offer?

Answer 12

A period of not less than 21 days for acceptance

Question 13

What must a Part 36 offer state regarding counterclaims?

Answer 13

Whether it takes into account any counterclaim

Question 14

When is a Part 36 offer considered made?

Answer 14

When it is served on the offeree

Question 15

What must be done to withdraw a Part 36 offer if it has been accepted?

Answer 15

It cannot be withdrawn or changed

Question 16

What happens if a Part 36 offer is accepted?

Answer 16

The claim will be stayed and will not continue to trial

Question 17

What is the consequence of accepting a Part 36 offer before the expiry of the relevant period?

Answer 17

Claimant is entitled to costs up to the date of acceptance

Question 18

What are the cost consequences if a Part 36 offer is accepted after the expiry of the relevant period?

Answer 18

Court determines costs unless parties agree

Question 19

What happens if a Part 36 offer relates only to part of a claim?

Answer 19

Costs will be determined based on whether the remainder is abandoned

Question 20

What are the consequences of unaccepted Part 36 offers at trial?

Answer 20

Court determines if a penalty is imposed based on offer’s reasonableness

Question 21

What does CPR 36.17 address?

Answer 21

Cost consequences when a Part 36 offer is not accepted

Question 22

What must a party do to accept a Part 36 offer?

Answer 22

Serve written notice of acceptance on the offeror

Question 23

What happens to a Part 36 offer if the relevant period expires?

Answer 23

It can be withdrawn or changed without court permission

Question 24

What is the significance of making a Part 36 offer before proceedings are issued?

Answer 24

Pre-issue offers have usual Part 36 consequences upon acceptance

Question 25

What is the role of the court regarding costs when a Part 36 offer is accepted?

Answer 25

The court will determine liability for costs if not agreed by parties

Question 26

What is the trigger for a defendant's offer not accepted?

Answer 26

A claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer. ## Footnote This is outlined in CPR 36.17(1)(a).

Question 27

What does 'more advantageous' mean in the context of a defendant's offer?

Answer 27

Better in money terms, however small the amount. ## Footnote This means the trial result must exceed the defendant's Part 36 offer in monetary terms.

Question 28

What are the consequences if a claimant fails to accept a defendant's offer and does not obtain a better judgment?

Answer 28

The claimant must pay the defendant's costs from the expiry of the relevant period and interest on those costs. ## Footnote This is specified in CPR 36.17(3).

Question 29

What happens if the trigger for a defendant's offer is not met?

Answer 29

The defendant's Part 36 offer has no effect. ## Footnote This occurs when the claimant does better at trial than the offer.

Question 30

What must the court order if a claimant's offer is not accepted and the judgment is at least as advantageous to the claimant?

Answer 30

The court must order interest on the award, costs assessed on an indemnity basis, interest on those costs, and an additional amount based on the award. ## Footnote This is outlined in CPR 36.17(4).

Question 31

What is a Tomlin Order?

Answer 31

A Tomlin Order consists of a public part and a confidential part detailing the agreement reached between the parties. ## Footnote It is used when parties wish to keep key settlement terms confidential.

Question 32

What does the court consider when determining if a penalty for not accepting an offer is unjust?

Answer 32

* The terms of any Part 36 offer * The stage in the proceedings when the offer was made * The information available to the parties * The conduct of the parties * Whether the offer was a genuine attempt to settle ## Footnote This is specified in CPR 36.17(5).

Question 33

What is the significance of the relevant period in relation to Part 36 offers?

Answer 33

If an offer was made within 21 days of the trial, there will be no Part 36 consequences unless the court abridges the relevant period. ## Footnote This ensures the offeree has a fair opportunity to accept the offer.

Question 34

What happens if both claimant and defendant have made Part 36 offers that are not accepted?

Answer 34

Each offer is considered separately based on the judgment amount. ## Footnote The effects depend on whether the judgment meets or exceeds the offers.

Question 35

What are the two types of consent orders?

Answer 35

* A consent order based on a contract * A consent order NOT based on a contract ## Footnote The former is rarely interfered with by the court, while the latter can be altered by the court.

Question 36

What is the maximum additional amount a claimant can receive under Part 36 if the judgment is advantageous?

Answer 36

The total amount is capped at £75,000. ## Footnote This applies when the claimant's offer is less than the judgment amount.

Question 37

What must a party do to get the full costs protection of Part 36?

Answer 37

* Make the offer more than 21 days before trial * Leave the offer open ## Footnote This enhances potential benefits to the offeror.

Question 38

What is the standard basis for assessing costs?

Answer 38

The usual basis for costs assessment unless specified otherwise under Part 36. ## Footnote This is typically applied unless indemnity costs are ordered.

Question 39

What is a Tomlin Order?

Answer 39

A type of consent order that contains a schedule with terms not generally ordered by the court.

Question 40

What are the two parts of a Tomlin Order?

Answer 40

Part 1 - ‘Order’ and Part 2 - ‘Schedule’.

Question 41

What does Part 1 of a Tomlin Order contain?

Answer 41

Actions to be taken by the court, e.g., stay of proceedings, permission to apply, detailed assessment of costs.

Question 42

What is the nature of Part 2 of a Tomlin Order?

Answer 42

Generally confidential and contains terms of agreement enforceable with a further court order.

Question 43

Where must directions for payment of money out of court be included?

Answer 43

In Part 1, the main body of the order.

Question 44

What must happen for a consent or Tomlin Order to take effect?

Answer 44

The court must approve the order.

Question 45

What happens when a settlement is reached during a stay of proceedings?

Answer 45

The application for the consent/Tomlin Order is treated as an application to lift the stay.

Question 46

What is a settlement agreement?

Answer 46

A form of contract used to record an agreement when no proceedings have been issued.

Question 47

What must be carefully defined in a settlement agreement?

Answer 47

The scope of the dispute being settled.

Question 48

What can parties agree on regarding interim applications?

Answer 48

They can reach an agreement on extensions of time without needing to apply to court for short extensions.

Question 49

What is the maximum extension of time that can be agreed without a court application?

Answer 49

Up to 28 days.

Question 50

What should be done if a longer extension is needed?

Answer 50

An application to court will usually be required.

Question 51

What is required to record an agreement for an extension of time?

Answer 51

A consent order must be drawn up and filed at court.

Question 52

Is the court obliged to approve a consent order?

Answer 52

No, it is a case management decision.

Question 53

True or False: A consent order allows for informal agreements without court involvement.

Answer 53

False.

Question 54

Fill in the blank: A settlement agreement must reflect the parties' _______.

Answer 54

[agreement]

Question 55

What is the significance of the public part of a Tomlin Order?

Answer 55

It contains actions that require enforcement by the court.