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DR > W8 A&Q (Settlement & Discontinuance) > Flashcards

W8 A&Q (Settlement & Discontinuance) Flashcards

1
Q

What is the purpose of Part 36 of CPR?

A

To encourage parties to settle

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2
Q

What does Part 36 CPR sets out?

A
  • Describes a kind of offer that a party can make
  • Sets out consequences if an offer of that kind is made and accepted.
  • Sets out different consequences if an offer of that kind is made and not accepted and the matter proceeds to trail (and those consequences depend on the outcome at trail)
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3
Q

What is the central rationale behind Part 36?

A

That parties who make realistic proposal to settle actions should get some benefit if these are not accepted and it turns out, at trail that they should have been accepted.

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4
Q

What is penalty stipulated in Part 36?

A

Generally takes form of:

  • Adjusting the costs,

-Damages and/or

-Interest

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5
Q

When can a Part 36 offer be made?

A

At any stage of any proceedings, including before proceedings are issued

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6
Q

Which party can make a Part 36 offer?

A

Either party can make a Part 36 offer

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7
Q

Do the normal contractual rules of offer and acceptance apply to Part 36?

A

No,

Part 36 is a self-contained procedural code, and the rules that govern part 36 offer are set out with Part 36 itself.

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8
Q

What is a Calderbank Offer?

A

An offer, usually communicated in writing and written ‘without prejudice save as to costs’, such that it cannot be referred to the judge until costa are considered after trail, but at that point can be relied upon.

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9
Q

Does a Calderbank offer comply with Part 36?

A

No

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10
Q

What is the name of the party making the offer in Part 36 ?

A

Offeror

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11
Q

What is the name of the party receiving the offer in Part 36 ?

A

oferee

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12
Q

What is the requirements to make a valid Part 36 offer for both D and C?

A

1) Be in writing

2) Make Clear it is made in pursuant to Part 36

3) Specify of a period not less than 21 days within which D will be liable for C’s cost if the offer is accepted (called: relevant period)

4) State whether it relates to the whole or part of the claim and

5) States whether it takes into account any counterclaim

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13
Q

What are the additional requirements for D to make a valid Part 36 Offer?

A

a) With limited exceptions, a Part 36 offer by D to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money.

b) D’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 oferee accepts the offer.

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14
Q

What is a relevant period in Part 36?

A

A period of not less than 21 days, specified in Part 36 offer, within which D will be liable for C’s costs if the offer is accepted.

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15
Q

What constitutes as writing in Part 36?

A

Wide definition of writing

  • Usually a Part 36 offer is in a letter which states that is made in pursuant to Part 36.
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16
Q

What is an alternative form to make a Part 36 offer?

A

Through a prescribed form N242A.

*IF completed properly = comply with Part 36.

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17
Q

When is a part 36 offer made?

A

When it is served on the oferee (CPR 36.7(2))

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18
Q

How can an oferee clarify a Part 36 offer?

A

The offere can seek clarification of the terms of the offer

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19
Q

What is the time limit for an oferee seek clarification on a Part 36 offer?

A

Within 7 days of service

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20
Q

How can you withdrawal a Part 36 Offer?

A

Offer Accepted: Cannot be withdrawn or its terms changed (CPR 36.9(1)_

Trail started: Court’s permission is required to withdraw the offer

Otherwise,
Relevant period expired?

Yes: Offer can be withdrawn or its terms changed without the court’s permission.

No: Any notice of withdrawal/change during the relevant period will take effect at the end of the relevant period, if the the offeree does not serve notice of acceptance during the relevant period.

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21
Q

Can you withdrawal a Part 36 Offer, if the offer has already been accepted?

A

Cannot be withdrawn or its terms changed (CPR 36.9(1))

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22
Q

Can you withdrawal a Part 36 Offer, if the trail has already started?

A

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

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23
Q

Can you withdrawal a Part 36 Offer, if the relevant period expired?

A

The offer can be withdrawn or its terms changed without the court’s permission.

*The offer can also be withdrawn automatically if its terms state so. This allows the offeror to make an offer that is time limited.

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24
Q

Can you withdrawal a Part 36 Offer, if the relevant period expired and the offeree does not serve notice of acceptance during the relevant period?

A

Any notice of withdrawal/ change during the relevant period will take effect at the end of the relevant period.

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25
Q

Can you withdrawal a Part 36 Offer, if the relevant period expired and the offeree serves a notice of acceptance during the relevant period?

A

The offeror can either allow the acceptance or apply to the court for permission to withdraw the offer or to change its terms.

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26
Q

What is the time limit for an offeror to apply to the court for permission to withdraw the offer or to change its terms, when the relevant period expired and the offeree serves a notice of acceptance during the relevant period?

A

Within 7 days of the notice of acceptance or if earlier before the first day of trail.

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27
Q

What is the courts discretion when an offeror applying to the court for permission to withdraw the offer or to change its terms, when the relevant period expired and the offeree serves a notice of acceptance during the relevant period?

A

The court may give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interest of justice to give permission.

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28
Q

How does an offeree accept a Part 36 offer?

A

Service written notice of acceptance on the offeror.

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29
Q

Is there a prescribed form to serve written notice of acceptance?

A

There is no prescribed for this

*a letter will be sufficient

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30
Q

What happens after the case is issued after acceptance of a Part 36 offer?

A

If the case is issued the acceptance also needs to be filed at court.

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31
Q

What is the result if the relevant period has expired to accept a Part 36 offer?

A

The offer remains open for acceptance unless it has been withdrawn.

*This remains the case even after the relevant period has expired, unless offer is expressed to be withdrawn automatically at the end of the relevant period.

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32
Q

What is the consequences of accepting a Part 36 offer?

A
  1. Stay: The claim will be stayed and will not continue to trail (CPR 36.14(1))
  2. Settlement sum: depends on the offer
  3. Cost: depends on when the offer was accepted.
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33
Q

What is the consequences of accepting a Part 36 which is or includes an offer to pay/ accept a single sum of money?

A

D has 14 days from acceptance to pay the settlement amount agreed unless otherwise agreed in writing

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34
Q

What happens if D fails to pay the settlement sum within the time limit?

A

Failing to pay the settlement within the 14 days from acceptance then,

C can enter judgement against D

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35
Q

What is the consequences of accepting a Part 36 which does not include an offer to pay/ accept a single sum of money?

A

D needs to comply with whatever was agreed upon

36
Q

What happens if D fails to comply with a Part 36 offer, which does not include an offer to pay/ accept a single sum of money?

A

The aggrieved party can apply to court to enforce the terms of the offer without the need to start separate court proceedings

37
Q

What is the cost consequence of acceptance of a Part 36 offer in the relevant period?

A

If accepted before the expiry of the relevant period, C is entitled to its costs of the proceedings up to the date the notice of acceptance was served on the offeror.

38
Q

What is the cost consequence of acceptance of a Part 36 offer outside the relevant period?

A

If accepted after expiry of the relevant period then,

a) the court will determine liability for costs unless the parties agree them BUT

b) The court must, unless it considers unjust to do so, order that -

  • C be awarded costs up to the fate the relevant period expired and
  • The offeree do pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.
39
Q

What is the cost consequences, where a Part 36 offer was made less than 21 days before trail?

A

Different rules apply where an offeree accepts an offer but the offer was made less than 21 days before trail.

In this situation, if the parties do not agree liability for costs the court must determine liability.

40
Q

Is it possible to make a Part 36 offer which relates to part of the claim only?

A

Yes

41
Q

What is the rules of acceptance of a Part 36 offer which relates to part of the claim?

A
  • If, at the time of acceptance, C abandons the remainder of the claim = C will only be entitled to the cots relating to the part of the claim contained in the offer, unless the court orders otherwise.

-If, at the time of acceptance, C does not abandon the remainder of the claim = the liability for costs will be determined by the court, unless the parties reach an agreement about the liability

42
Q

Can the offeror make an Part 36 offer that is time limited ?

A

Yes, then the offer will be withdrawn automatically if its terms state so.

43
Q

What is the consequences of not accepting a Part 36 offer?

A

The court determine whether a penalty should be imposed, which (broadly) turns on whether a Part 36 have been accepted.

44
Q

How does a court consider whether a penalty should be imposed, when C does not accept a Part 36 offer from D?

A

Courts consider two issues:

  1. Tigger
  2. Consequences
45
Q

How is a ‘tigger’ established for when D’s Part 36 offer is not accepted?

A

When C fails to obtain a judgement more advantageous than D’s Part 36 offer.

46
Q

What does ‘more advantageous’ mean?

A

Better in money terms, however small the amount.

47
Q

What happens if C fails to accept an offer by D, which is more advantageous?

A

Consequences apply

48
Q

How could you ascertain whether the judgement is more advantageous, when D’s offer is not accepted?

A

The comparison in money terms is made at the date of judgement.

Thus,

Compare the sum set out in Part 36 offer with the combined quantum of judgement plus what the judge awards by way of interest up to the end of the relevant period.

49
Q

Does Part 36 offer include interest?

A

Yes, Part 36 offer is deemed to include interest up to the end of the relevant period.

50
Q

Does Part 36 offer include interest after the relevant period?

A

No

51
Q

What is the result when a trigger is established when C rejects D’s 36 offer?

A

Consequences will apply:

1) C pays D’s cost from the date the relevant period expired

&

2) Interest on those Costs

3) Unless it considers it unjust to do so

*Plus C must bear their own costs for this period.

52
Q

Who pays whose costs in relation to the period before the relevant period expired, when when C rejects D’s 36 offer?

A

Usual Cost Rules apply (CPR 44)

53
Q

What are the Usual Cost Rules?

A
  • If C won and received something at trial then D will pay C’s cost in relation to this period.
  • If D won, then C will pay D’s costs in relation to this period.

*But the court has discretion on both scenarios.

54
Q

If D’s Part 36 offer is rejected, but the trigger is not met, What is the penalty?

A

There is no penalty.

*D’s offer has no effect.

55
Q

What is the effect if C rejects D’s 36 offer and is awarded less than the offer?

A

Step 1: D’s Offer

Step 2: More advantageous?
No = Tigger is met

Step 3: D gets:
1) Costs from
expiry of the
relevant period.
2) Interest on
those costs.
*Unless Unjust

Step 4: D will likely be ordered to pay C’s costs for this period under the normal costs rules (Based on Court’s Discretion)

(Split Cost Order)

56
Q

What is a split costs order?

A

When D’s offer is reject and the trigger is met = consequences, which results in a split cost order which is..

D pays for C’s cost under the normal cost rules between D’s part 36 offer made till the relevant period ends

WHILE

C ordered to pay D’s costs and interest on those cost (Unless unjust)

57
Q

What is the effect if C rejects D’s 36 offer and is awarded same than the offer?

A

Step 1: D’s Offer

Step 2: More advantageous?
No = Tigger is met

Step 3: D gets:
1) Costs from
expiry of the
relevant period.
2) Interest on
those costs.
*Unless Unjust

Step 4: D will likely be ordered to pay C’s costs for this period under the normal costs rules (Based on Court’s Discretion)

(Split Cost Order)

58
Q

What is the effect if C rejects D’s 36 offer and is awarded more than the offer?

A

Step 1: D’s Offer

Step 2: More advantageous?
Yes = Tigger is NOT
met
Step 3: No consequences for D

Step 4: D will pay for C’s cost of the whole claim under the normal cost rules (But this is at the courts discretion)

59
Q

How does a court consider whether a penalty should be imposed, when D does not accept a Part 36 offer from C?

A

Courts consider two issues:

  1. Tigger
  2. Consequences
60
Q

How is a ‘tigger’ established for when C’s Part 36 offer is not accepted?

A

Judgement against D is at least as advantageous to C as the proposals contained in C’s Part 36 Offer.

61
Q

What does ‘at least as advantageous’ mean?

A

Where C does the same or better at trial than its own Part 36 Offer.

62
Q

When does ‘at least as advantageous’ apply ?

A

When C’s Part 36 offer is rejected

63
Q

When does ‘more advantageous’ apply ?

A

When D’s Part 36 offer is rejected

64
Q

What is the result when a trigger is established when D rejects C’s 36 offer?

A

Consequences will apply:

D will pay:

1) Indemnity cost (from end of relevant period)

2) Interest on those cost up to 10% above base rate

3) Interest on damages up to 10% base rate (from end of relevant period)

4) An additional amount

5) Unless unjust

  • 6) Pays C’s cost of the whole under the normal cost rules (But it the courts discretion)
65
Q

How do you calculate the additional amount, when a trigger is met and consequences apply to D?

A

It is based on a percentage of the award.

The percentage being 10% up to 500,000 and 5% above 500,000.

*The total amount is capped at 75,000

66
Q

What is the effect if D rejects C’s 36 offer and is awarded more than the offer?

A

Step 1: C’s Offer

Step 2: at least advantageous?
Yes = Tigger is met

Step 3: C gets = D pays penalties:
1) Indemnity Cost (from end of relevant period)

2) Interest on those costs up to 10% above base rate.

3) Interest on damages up to 10% above base rate (from end of relevant period)

4)Additional Costs (depending on damages awarded)

*Unless Unjust

Step 4: D will be ordered to pay C’s costs incurred + damages (Based on Court’s Discretion)

67
Q

What is the effect if D rejects C’s 36 offer and is awarded less than the offer?

A

Step 1: C’s Offer

Step 2: at least advantageous?
No = Tigger is NOT met

Step 3: C Offer has no consequences

Step 4: D will be ordered to pay C’s costs under the normal cost rule (Based on Court’s Discretion)

68
Q

What is the effect if D rejects C’s 36 offer and is awarded same as the offer?

A

Step 1: C’s Offer

Step 2: at least advantageous?
Yes = Tigger is met

Step 3: C gets = D pays penalties:
1) Indemnity Cost (from end of relevant period)

2) Interest on those costs up to 10% above base rate.

3) Interest on damages up to 10% above base rate (from end of relevant period)

4)Additional Costs (depending on damages awarded)

*Unless Unjust

Step 4: D will be ordered to pay C’s costs incurred + Damages (Based on Court’s Discretion)

69
Q

What is the effect if D rejects C’s 36 offer and C loses the trial?

A

C pays for the D’s cost that incurred

+

C pays their own cost

*Trigger is not met = C’s offer has no consequences.

70
Q

When deciding what is unjust, what will the court take into account?

A

1) The terms of any Part 36 offer

2) The stage in the proceedings when the offer was made

3) The info available to the parties

4) The conduct of the parties in relation to giving. refusing info for the purpose of enabling the offer to be made/evaluated and

5) Whether the offer was genuine

*Note: Court’s discretion under this provision is more limited than the court’s general discretion under the normal costs rules

71
Q

What is the effect of D making a Part 36 offer made within 21 days of the trail?

A

Even if the trigger is satisfied, there will be no Part 36 consequence unless the court abridges the relevant period (i.e shortens it)

72
Q

What is the effect of C making a Part 36 offer made within 21 days of the trail?

A

Even if the trigger is satisfied, there will be no Part 36 consequence unless the court abridges the relevant period (i.e shortens it)

72
Q

What would happen if both C and D has made Part 36 offers, neither of which have been accepted when the matter goes to trail?

A

Depends on the offer and the judgement awarded.

*Look at notes to complex to answer in one question! :)

72
Q

When does Part 36 consequence do not apply ?

A

1) Part 36 offer was withdrawn

2) Offer was made within 21 days of the trail

3) Offer was changed so that its terms are less advantageous to the offeree and the offeree has beaten the less advantageous offer.

73
Q

How can a claim end?

A
  1. Success on the substance, at trial or via application for summary judgment
  2. Settlement
  3. Admission
  4. Judgment following the striking out of the claim/defence
  5. The claim is discontinued.
74
Q

Who can discontinue a claim?

A

Only C

75
Q

When can C discontinue a claim?

A

At any time

76
Q

What does discontinuance mean?

A

C is choosing not to pursue the claim against D any further

77
Q

Can C discontinue part of the claim?

A

Yes

78
Q

Can C discontinue whole of the claim?

A

Yes

79
Q

Does C have to discontinue against all D (if more than one)?

A

C can choose to discontinue the claim against only one D or against multiple D/

80
Q

What is the consequences of discontinuance?

A
  1. It ends the proceedings in relation to the claim/part of claim discounted
  2. C is liable to pay D’s cost up to the point of discontinuance, unless the court orders otherwise.

*If the claim is only discontinued in part, then C is only liable for costs in relation to the part which is discontinued.

81
Q

When is the court’s permission required for discontinuing proceedings?

A

When C has already received some sort of remedy such as an interim injunction or an interim payment

82
Q

What is the procedure for discontinuance?

A

1) File a notice of discontinuance at court

*This must make clear which part of the claim is discontinued (if only part)

2) Serve a copy on every party

3) Discontinuance takes effect from the date of service

4) Upon discontinuance, a cost order is deemed to have been made in D’s favour on the standard basis (usual cost rules)

83
Q

When does discontinuance take effect?

A

Discontinuance takes effect from the date of service of the notice

84
Q

Does a Part 36 offer need to have ‘without prejudice save as to cost’ written?

A

No

DR (26 decks)

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