8. Settlement and ADR Flashcards
Difference between a Calderbank offer and Part 36 Offer
Calderbank more flexible as not governed by P36 rules
Four formality requirements for P36 offer
(1) In Writing
(2) Say it’s a P36 Offer
(3) Specify Relevant Period
(4) Say whether Offer is to Settle All/Part of the Claim, Including Counterclaims
If the Defendant issues a P36O, how should the money be paid?
As a single sum
When will D’s offer to settle where payment is suggested more than 14 days after acceptance not be P36?
Where C does not accept
When can you make a P36O?
Anytime before judgment
When is the offer deemed made?
When served
How long does offeree have to ask for clarification?
7 days of offer service
When may offeree withdraw offer without court’s permission?
Where trial hasn’t begun; or relevant period has expired
When does a notice to withdraw/amend during relevant period take effect?
At the end of the relevant period - unless offeree has accepted offer
How long does offeror have to apply to withdraw/amend offer after acceptance?
7 days
What is the minimum relevant period time?
21 days
When will courts allow withdrawal/amend after acceptance?
Change of circumstances and in the interests of justice
Can offeree accept the offer after rejecting it?
Yes - so long as it hasn’t been withdrawn
Can you accept an offer after the relevant period?
Yes - but the offeree will usually be liable for offeror’s costs after relevant period until acceptance
What P36 cost consequences follow if a P36O is withdrawn?
None
What are the cost consequences on acceptance where acceptance was in the relevant period?
Claimant gets costs until notice of acceptance
What are the cost consequences on acceptance where acceptance was outside the relevant period?
C gets costs until relevant period expires; offeror gets costs afterwards until acceptance
What happens if the P36O is for part of the claim if (a) C abandons rest of claim on acceptance; or (b) C pursues rest of claim on acceptance?
(a) C can only get costs relating to the part of the claim in the offer, unless court says otherwise
(b) Parties agree on costs liability; or court determines
When will there be a P36 costs penalty where the defendant makes a P36O, and what is the penalty?
Where C obtains a judgment less advantageous than D’s offer
Penalty - C pays D’s costs from expiry of relevant period plus interest
When will there be a P36 costs penalty where the claimant makes a P36O, and what is the penalty?
Where C obtains a judgment as good or better than its offer
Penalty - higher interest on award and costs; costs assessed on indemnity basis; additional % of award (or costs if no award) capped at £75,000
What does the court consider when looking at whether it’s unjust to impose P36 cost consequences?
Terms of offer; whether it was a genuine attempt to settle; when it was made; information available to parties; conduct when exchanging information in relation to the offer
What happens if judgment was obtained before expiry of relevant period?
No P36 consequences
What happens if the offer was changed to less advantageous terms, and the offeree beat that offer on judgment?
No P36 consequences
What happens if C and D have simultaneous offers on judgment?
If C should have accepted D’s offer, those consequences apply
If D should have accepted C’s offer, those consequences apply.
What is mediation-arbitration?
Parties agree to try mediation, then move to arbitration if that doesn’t resolve the issue.
What is expert appraisal, expert evaluation, and early neutral evaluation?
Independent party provides a non-binding opinion helpful for settlement discussions. Parties cover costs of independent party.
How does the court encourage ADR in the DQ?
Parties can tick a box to get a 1 month stay to try and settle
What is the court’s obligation regarding ADR?
Required to encourage and facilitate ADR if appropriate
Can courts compel parties to use ADR?
Yes
Discontinuance Form
N279
Who pays costs when a case is discontinued?
C pays D’s costs until discontinuance
When does C need court’s permission to discontinue?
Exceptional circumstances - like where C has received an interim injunction or payment
When does discontinuance take effect?
When the N279 is served on every party
