CPR 36 - Offers to settle Flashcards by Yustina Milad

Calderbank - what is it?

Unlimited terms by which you can agree something, but for other things, calderbank is more difficult/complicated, hence the need for part 36.

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What is part 36?

Court respected procedure, everyone knows what part 36 is.
Formal way of making offers to settle

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Is it binding on the court?

Yes

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General info to know

The time when it’s made is the date it’s served on the offeree (person receiving the offer)
You can start part 36 at any time, even before proceedings.

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Why do we have the ‘relevant period’?

Because it’s the point at which you’re going to find it difficult to withdraw your offer. You’ll need permission from court to withdraw during relevant period.

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Offer can only be withdrawn/changed if offeree has not served notice of acceptance - true or false?

True

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Procedure:

36.5(1)(a) Must be in writing:
State that it’ll have the consequences of part 36.
It must make clear that it’s made pursuant to part 36.
It must specify a period of not less than 21 days within which D will be liable for Cs costs.

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The relevant period?

21 days

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Relevant period doesn’t apply if you don’t have enough time to make 21 days before trial. True or false?

True

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If we have 15 days before trial and I make a part 36 offer, then simply it’ll just run from now. For example, 15 days from now, but case is 3 days long, means relevant period is 18 days.

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You can’t just withdraw an offer, you have to serve notice of withdrawal. True or false?

True

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Must serve written notice on offeree - before notice of acceptance is received. True or false?

True

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If notice of acceptance is received, you have to take permission from the court to withdraw/amend - True or false?

True

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After relevant period, you can withdraw offer without the courts permission, as long as offeree hasn’t accepted. True or false?

True

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Example - You’ve made a part 36 offer, you’ve got relevant period of 21 days but 7 days later, you realise you need to withdraw, you send notice of withdrawal to other side, the other side want to accept the part 36 offer.
If other side hasn’t accepted, even though you’ve served notice that you want to withdraw, offer withdraws within relevant period, which is 21 days.

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Example - served part 36, 7 days later you ask to withdraw but on day 14, they say no we’re gonna accept it, then the acceptance will still bind unless you apply to court for permission to withdraw.

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Even if you wanna withdraw the offer, it must be at the end of the relevant period in which withdrawal will take effect, otherwise no point in relevant period if no-one sticks to it. So ultimately, no withdrawal takes effect during RP. But will amendment take effect during RP?

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If offeree wants to accept it, regardless of you wanting to withdraw, then they can and you will have to apply for court permission to withdraw offer.

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Part 36 is an irrevocable process

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Only way offer can be withdrawn is if other side doesn’t accept it

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Need courts permission to accept a part 36 where a trial is in progress. So if there isn’t 21 days, no point in thinking about RP, because you’ll need courts permission anyway

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Dealing with PI Claims:

Need to state how you’re going to pay -
lump sum, periodic payments, how it’ll be funded etc.

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Court will only allow you to withdraw offer/change terms, if they think it’s in the interest of justice to do so - true or false?

true

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Once the minimum relevant period has passed (21 days), you can do what you want, you don’t need permission from anyone, you just serve notice to withdraw.

All these rules only apply when you’re within the 21 days relevant period.

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RP minimum has to be 21 days but can change it to 28 days if you wanted to

If you made offer, other side can ask for clarification within 7 days of receiving the offer, but can't ask after 7 days

Example - 'is this inclusive of interest and CC?' 'Is this money including xy and z?'

What can you do if you're not given clarification?

Can go to court and demand it

Example - you've made a part 36 for your brain damage at 100k, as no prospect of recovery, a few days after making that offer, a new med report has come out and says that the prospect of full recovery within a year is 90%, then you'll need to give notice to withdraw straightaway and the other side will say no and accept the offer within RP, then you'll need to apply to the court within 7 days of the party accepting the offer. Court will likely accept application to withdraw offer.

How many days after party accepting the offer do you have to apply to the court for it to be withdrawn?

7 days

Part 36 is watertight

If you make part 36 offer more advantageous/amend it to benefit other party e.g. we will offer you more than we originally said, it's considered a new offer and a new relevant period starts again

You can accept part 36 offer at any time, except scenarios where you need to get the courts permission e.g. a trial is in progress = need courts permission for acceptance

Withdrawing an offer that's been accepted, when can you do this?

Only when there's an interest of justice and you applied to court within 7 days of the offer being accepted

What happens if the offer is accepted?

Claim will be stayed on the terms of that offer. If offer is only for part of the claim, then only part of that claim will be stayed. Even though it's stayed, someone may still apply to court to enforce the offer.

Will judge be told about the contents of the offer?

No, save as to costs, so only a costs judge will ask. You only need to talk about the costs part of the offer, nothing else.

Costs consequences

If offer made by D, but C wins and gets judgment more advantageous than the offer, then he's beaten the part 36, so he'd get his costs as normal, cus C was right to not accept the offer.

What happens if C wins but doesn't get a more adventagous award?

C hasn't beaten the offer, C will get costs as normal up to the RP. After the RP, costs consequences will bite and will say that C should've accepted the offer as hasn't been awarded more at court, you'd get the costs up to the RP then would have to pay Ds costs.

If offer is made by C, says settle for 10k and D says no, but in trial D gets 10k or 101k, D should've settled, D gets costs on indemnity basis and interest after RP.

If C making the offer - whats the rule

same or more

If D making the offer - whats the rule

Must beat it

Much more advantageous for C to make the offer, cus C only has to match it, if C accepts offer from D, they have to beat. Case of who makes the first offer.

Even if amendments are made to offer, the fact that you haven't accepted the first offer, still means offer is valid, even if there's an updated amendment, it won't take effect until RP ends.

Amended offer - new offer but can still accept original offer?

Yes

Costs consequences incurred after RP?

If you're within relevant period (21 days) you can't do anything, even if you try withdraw your offer, they can still accept your offer and if they do, you'll need courts permission to withdraw it.

Only way to amend/withdraw during RP?

Courts permission, has to be special circumstances eg fundamental change in the knowledge that the offer was made

Example - Coma, settle for 5 mil, but then you wake up the next day during RP, obvs gonna change offer cus don't want them having 5 mil if they're not in coma anymore

When do costs run?

They run ordinarily up until the end of RP and then after RP things can change with costs

If you accept offer within RP - You get costs up until the acceptance of the offer. What you actually get awarded depends on the outcome of the trial

C make offers - no costs consequences if you don't beat the award given at court to D

What happens if you haven't accepted/rejected offer during RP?

Usually the offer expires/it's automatically withdrawn after RP. No real strategic value of keeping the offer open after RP, but if you haven't withdrawn your offer, can still be accepted and won't change RP, all timings remain the same

When does part 36 sum have to be paid?

Sum has to be paid within 14 days of accepting the offer

C makes offer - if D doesn't accept Cs offer and D does worse at trial (eg the judgment is less favourable to them than the terms of the offer), the C can be awarded costs sanctions eg D may be liable for Cs costs from the date of the offer (RP) and may also be ordered to pay interest at a higher rate on any damages awarded. C must be awarded at least what was offered in the part 36.

D makes offer - if C doesn't accept Ds offer and fails to do better at trial than the terms of Ds offer, C may be ordered to pay Ds costs from the date of the offer (RP).

The key here is that C MUST be awarded the SAME or MORE at trial than Ds offer, to avoid costs consequences

C makes offer...

D must beat that offer at trial

D makes offer...

C must get same/more than offer at trial

Judge doesn't look at part 36 until after you've won the case

How long do you have to pay part 36 sum?

Sum has to be paid within 14 days of acceptance

What happens if you amend the offer?

Any amendments to offer are only valid when RP runs out, then new RP starts for those new amendments

What if D+C both make an offer? Which one takes precedent?

Whoever makes it first. You're in a better position if you're the one making the offer

C makes offer?

Must get same/more at trial

D makes offer?

Must beat that offer at trial

Calderbank vs Part 36 differences?

There are no formal requirements for a Calderbank Offer. Part 36 prescribes costs sanctions which will (in most cases) be imposed on a party that rejects an offer and then fails to beat that offer at trial.

When would you use Calderbank?

When one party wants to propose a settlement but also protect its position on costs.

Part 36 characteristics

It's a formal offer made under Part 36 It has strict rules about how it's made, how long it stays open, and what happens if it's rejected. If someone refuses a Part 36 offer and then loses or does worse at trial, they might have to pay more in legal costs. It's designed to encourage early settlement and puts pressure on the other side to settle.

Calderbank characteristics

It's a "without prejudice save as to costs" offer made outside the Part 36 rules. It's more flexible — doesn’t need to follow formal rules, but still can affect who pays costs at the end. The court can look at it when deciding who should pay legal costs, especially if the other side acted unreasonably by refusing it. Key Difference: Part 36 = formal, rule-based, stronger cost consequences. Calderbank = informal, more flexible, but can still influence costs.

Use Part 36 Offer when: You want maximum cost protection if the other side rejects your offer. You're confident in your case and want to put pressure on the other side to settle. You want to follow a clear, formal route that courts recognize and often reward. You're making a money offer (most useful when offering or demanding a specific sum). You want to create cost risks for the other party (e.g. interest penalties, indemnity costs). Example: You're a claimant offering to settle for £10,000. You believe the court might award you more, so you make a Part 36 offer. If they reject it and you win more at trial, they could face serious cost consequences.

Use Calderbank Offer when: You want more flexibility (e.g. offering something that doesn’t fit into Part 36 like a non-monetary term). You're worried the Part 36 rules might trip you up (e.g. time limits, formalities). You're not sure about your position and want to keep negotiations informal, but still potentially get cost protection. You're dealing with a complex case where settlement terms go beyond just money (like confidentiality, future obligations, etc.). Example: You offer to settle by discontinuing the claim if the other side agrees to cover your costs. Since this isn’t a straight-up money offer, you might go the Calderbank route.

Sometimes both are used: A party might send a Part 36 offer for the financial settlement, and a Calderbank letter for other terms (like timing or conditions). Quick Tip: Part 36 = best for strong, formal cost leverage. Calderbank = best for flexible, custom negotiations or where Part 36 doesn’t fit.

Can part 36 be inclusive of costs?

No, can't be inclusive of costs as you don't know what costs will be at trial.

Can apply to court within 7 days of other party accepting offer for permission to change the terms of the offer

Making offer during trial - when does RP end?

RP runs until the end of the trial, not the usual 21 days. If RP is 21 days but trial starts during those 21 days, offer runs until the end of the trial.

Is part 36 offer inclusive of interest?

Yes

If made offer, then make another offer, the new offer doesn't change the original offer, it's just a brand new offer alongside the original offer; it doesn't override it. Can have multiple offers running at the same time.

General rule - you run off the first offer if it hasn't expired