7 Settlement including offers to settle Flashcards
What is the form of a part 36 offer (a-e)
a) must be in writing
b) clear that it is pursuant to Part 36
c) state whether the offer relates to the whole claim or part of the claim or to an issues in the claim if so, which issues
d) state whether it takes into account a counterclaim
e) specific a period no less than 21 days (relevant period) that if the offeree accepts the offer, that D will pay C’s costs up to the date of acceptance
If a P36 offer is made during proceedings and then the oferor would like that to apply during an appeal, the offeror must…
Make a new P36 offer
A Calderbank offer is…
any other type of offer that is made during the course of proceedings that is WITHOUT PREJUDICE SAVE AS TO COSTS
How is a Calderbank offer differ from a Part 36 offer (7)
- CO can be set out within a letter. P36 must be self contained
- CO court has discretion as to weight given to offer re costs. P36 the court has no discretion (unless it is about the form and content - but if valid NO DISCRETION)
- CO does not have clear cost consequences, merely persuasive. P36 CLEAR COST CONSEQUENCES
- CO is more flexible. P36 strict rules
- CO no restriction as to the terms of the offer. P36 restrictions on contents and offer
- CO D does not have to pay within 14 days if that’s what’s agreed. P36 D has to pay within 14 days (unless C agrees?)
- CO no time limit. P36 limit limited (RP) especially if automatic withdrawal
What is the restriction on disclosure of P36 or Calderbank offer?
That should not be reveal to judge until liability and quantum have been established unless all parties agree
P36 is deemed accepted
Upon notice of acceptance deemed served (no requirement for court to do anything) unless child or PP
When is court approval needed for the acceptance of a P36 offer?
When a trial has already began or in cases where party is a child or protected party
In cases of several liability, a claimant can accept a P36 offer and still…
Pursue claim against other D’s
What are the mechanics of a person accepting a P36 offer?
• write to offeror accepting
• files notice of acceptance at court service
• serves notice of acceptance under part 6 rules of service
If an offer is made and accepted with the relevant period, D will pay costs up to service of acceptance. However…
If the offer is accepted outside of the relevant period, D will only pay C’s costs up to the end of the relevant period
If at the end of the RP, the offer has not been accepted, the offeror may write to the offeree to…
• withdraw
• reduce
• increase
(Basically a new offer)
D makes a part 36 offer to C and within the RP, C accepts. But upon notice of acceptance, D is made aware that C has been fraudulent in their claim for the extent of their injuries. What can D do?
Within SEVEN days of notice of acceptance he can apply to the court to reduce or withdraw the offer. The court is likely to give permission if there has been change of circumstances and it is in the interest of justice to do so
What cost consequences of C not accepting an offer that they then fail to get better than at trial?
C will pay D’s costs from the RP until trial on a standard basis
What happens if D does not accept and offer then C is awarded that amount or more at trial?
D will pay C’s costs up to the end of the RP on the standard basis and everything after that will be on an indemnity basis
When is a Calderbank most often used?
Where Part 36 offers do not apply so small claims track and arbitration
