17. Part 36 Offers/Discontinuance

Question 1

What is a Part 36 offer?

Answer 1

A formal, without prejudice offer, to settle a claim

Question 2

Who can make a Part 36 offer and what must they specify in the offer?

Answer 2

Either party can make a Part 36 offer, and they must specify the amount they would be prepared to pay/accept to settle

Question 3

What are the five requirements of a Part 36 offer?

Answer 3

1. In writing
2. Clearly state that it is made pursuant to CPR Part 36
3. Specify the relevant period (not less than 21 days) within which the offer can be accepted
4. State whether the offer relates to all or just part of the claim
5. State whether the offer takes into account any counterclaim

Question 4

If a Part 36 offer, made by either party, is accepted within the relevant period, up until when will defendant pay the costs of the claim, and on what basis will they be assessed?

Answer 4

The defendant will pay costs on the standard basis up to the point of acceptance

Question 5

What may the offeror be awarded if they make a Part 36 offer pre-issue and the parties settle the claim before proceedings begin?

Answer 5

Pre-issue costs that they incurred

Question 6

What may the offeror be awarded if they make a Part 36 offer pre-issue but it is rejected by the other party, and the offeror wins the case?

Answer 6

Costs related to pre-action work, in addition to the costs of the litigation

Question 7

If a Part 36 offer is unclear, within what time limit must the offeree request clarification?

Answer 7

Seven days

Question 8

Can a Part 36 offer be withdrawn or amended?

Answer 8

As long as the offeree has not served notice of acceptance, otherwise court permission is needed.

Question 9

If a notice of withdrawal or to change the terms to ones less favourable for the offeree is served before the expiry of relevant period, when does the notice take effect?

Answer 9

When the relevant period expires, unless the offeror accepts within that time (in which case court permisison is needed)

Question 10

After notice of acceptance, within what time limit can the offeror apply to the court to vary the terms of the offer or withdraw it?

Answer 10

7 days

Question 11

What two points must the court be satisfied of to grant permission to withdraw or amend a Part 36 offer after it has accepted?

Answer 11

1. Change of circumstances since the offer was made
2. In the interests of justice to give permission

Question 12

How must a Part 36 offer be accepted?

Answer 12

In writing

Question 13

When can a Part 36 offer be accepted?

Answer 13

At any time: within the relevant period with no limitations, and after the relevant period as long as the offeror has not withdrawn the offer

Question 14

If a claimant accepts a defendant’s Part 36 offer outside the relevant period, up until when will the defendant’s liability to pay the claimant’s costs run?

Answer 14

Until the end of the relevant period (the same as if the offer was accepted within the relevant period)

Question 15

Unless the parties agreed otherwise, in the situation where a claimant accepts a defendant’s Part 36 offer outside the relevant period, who pays the defendant’s costs for the period between the end of the relevant period and when the offer was accepted?

Answer 15

The claimant

Question 16

What is required to accept a Part 36 offer after trial has started?

Answer 16

Court permission

Question 17

If a defendant accepts a claimant’s Part 36 offer within the relevant period, they are liable to costs up until when?

Answer 17

Until they serve the letter accepting the Part 36 offer

Question 18

What is required to accept a Part 36 offer from a single defendant in a case with multiple defendants?

Answer 18

Court permission

Question 19

What are the two situations where a Part 36 offer might cause cost-related difficulty for a party?

Answer 19

1. Claimant rejects defendant’s offer and fails to beat offer
2. Defendant rejects claimant’s offer and claimant is awarded an amount equal to or greater than the offer

Question 20

What are the two situations where a Part 36 offer might will not cause cost-related difficulty for a party?

Answer 20

1. Claimant rejects defendant’s offer and beats it
2. Defendant rejects claimant’s offer and the claimant is awarded less

Question 21

Where a claimant rejects a defendant’s offer and fails to beat the offer, what is the consequence?

Answer 21

Defendant will have costs awarded on a standard basis from the date when the relevant period of acceptance expired

Question 22

Where a defendant rejects a claimant’s offer and claimant is awarded an amount equal to or greater than the offer, what is the consequence?

Answer 22

Unless it is unjust, for the period after the time for acceptance expired,
1. costs will be assessed on an indemnity basis and
2. 10% interest on of costs
3. 10% interest on damages award
4. An additional amount 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

Question 23

What is required for a settlement to be validly accepted on a child’s behalf?

Answer 23

Approval from the court

Question 24

How should a claimant proceed where it wishes to discontinue a claim following receipt on an interim payment?

Answer 24

Obtain court permission or consent from defendant who made the interim payment.

Question 25

What is a Tomlin Order, and what are its benefits?

Answer 25

A consent order staying all further proceedings in the claim, ordering the defendant to pay the claimant’s costs to be assessed if not agreed and giving liberty to apply to carry into effect the agreed terms as to payment contained within the schedule.
- Allows parties to keep settlement confidential (as schedule can be kept confidential).

Question 26

What factors will the court considers when deciding whether to impose penalties on a defendant for refusing a claimant’s Part 36 offer?

Answer 26

Consider whether consequences would be unjust taking into account all the circumstances of the case.
* Terms of any Part 36 offer;
* Time it was made
* Information available at the time
* Conduct of parties
* Whether offer was a genuine attempt to settle