CPR 36 - Offers to settle Flashcards
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.
What is part 36?
Court respected procedure, everyone knows what part 36 is.
Formal way of making offers to settle
Is it binding on the court?
Yes
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.
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.
Offer can only be withdrawn/changed if offeree has not served notice of acceptance - true or false?
True
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.
The relevant period?
21 days
Relevant period doesn’t apply if you don’t have enough time to make 21 days before trial. True or false?
True
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.
You can’t just withdraw an offer, you have to serve notice of withdrawal. True or false?
True
Must serve written notice on offeree - before notice of acceptance is received. True or false?
True
If notice of acceptance is received, you have to take permission from the court to withdraw/amend - True or false?
True
After relevant period, you can withdraw offer without the courts permission, as long as offeree hasn’t accepted. True or false?
True
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.
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.
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?
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.
Part 36 is an irrevocable process
Only way offer can be withdrawn is if other side doesn’t accept it
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
Dealing with PI Claims:
Need to state how you’re going to pay -
lump sum, periodic payments, how it’ll be funded etc.
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
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.
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
