CH.7 Part 36 offers, settlement, trial & costs

Question 1

List the steps to establish the cost consequences of rejecting a Part 36 offer.

Answer 1

1. Who has made the offer?
2. Which part of CPR 36.17 applies? if n/a, then apply CPR 44.2 (2) (a).
3. Who does the court wish to penalise?
4. How, and for what period?

Question 2

What 3 things happen when a Part 36 offer is accepted?

Answer 2

1. Written notice of acceptance must be served on the offeror (CPR 36.11(1)).
2. A notice of acceptance must also be filed with the court (36A PD 3.1) if proceedings have been issued.
3. The case will then be stayed and will not continue to trial (CPR 36.14(1)).

Question 3

List the cost consequences and relevant CPR Rules governing a claimant accepting a Part 36 offer.

Answer 3

the claimant will be entitled to:
 the settlement amount contained in the Part 36 offer; and
 its costs of the proceedings up to the date the notice of acceptance was
served on the offeror (CPR 36.13).
- The claimant has therefore “won” its claim and so, following the general rule in CPR 44.2, the claimant should be entitled to its costs of the proceedings.

Question 4

How long does the defendant have to pay the settlement amount agreed?

Answer 4

The defendant has 14 days from the notice of acceptance (unless the parties agree otherwise) to pay the settlement amount agreed (CPR 36.14(6)).

Question 5

defendant’s offer

CPR 36.17?

Answer 5

For a defendant’s offer, you look at CPR 36.17(1)(a) and CPR 36.17(3)

Question 6

claimant’s offer

CPR 36.17?

Answer 6

For a claimant’s offer, you look at CPR 36.17(1)(b) and CPR 36.17(4)

Question 7

What is a a ‘split costs’ order?

Answer 7

a ‘split costs’ order; the defendant pays costs for the earlier part of proceedings whilst the claimant pays costs for the ‘wasted’ part.

Question 8

Court discretion re. Part 36 offer rejection sanctions - case?

Answer 8

Thai Airways International Public Company Ltd v KI Holdings Co Ltd [2015] The court held it would be unjust to subject the defendant to the financial sanctions of not accepting the Part 36 offer where the claimant had not allowed the defendant access to information needed to establish what losses the claimant had suffered as a result of the defendant’s breaches of contract.

Question 9

Explain the difference between ‘open’ and ‘without prejudice?

Answer 9

‘without prejudice’ evidence/ information cannot be used in court.
Parties may explore settlement, without fear that anything said in the course of negotiations might subsequently prejudice their positions.

Question 10

A communication is without prejudice if the negotiation aim…

Answer 10

a genuine attempt at reaching a settlement