DR 12 - Settlement Flashcards
When can a Part 36 offer be made?
- Part 36 offers can be made at any stage of proceedings, including before proceedings are issued.
Who can make a Part 36 offer?
- A Part 36 offer can be made by either party
What is a Calderbank offer?
An offer,
- usually communicated in writing, and
- written ‘without prejudice save as to costs’,
cannot be referred to the judge until costs are considered after trial, but at that point can be relied upon.
- Does not need to comply with Part 36.
What is the effect of a Calderbank offer?
The court will have regard to a Calderbank offer when it exercises its discretion on costs
What is the form of a Part 36 offer for both claimants and defendants?
- Be in writing;
- Make clear it is made pursuant to Part 36;
- State whether it relates to the whole or part of the claim; and
- State whether it takes into account any counterclaim.
- Specify the relevant period (not less than 21 days)
What is are the additional requirements of a form of a Part 36 offer for defendants?
- must be an offer to pay a single sum of money.
- must offer full payment within 14 days following the date of acceptance otherwise will not be treated as a Part 36 offer unless the offeree accepts the offer.
What is the ‘relevant period’ for a Part 36 offer?
A period of not less than 21 days, specified in a Part 36 offer
When is a Part 36 offer made?
When it is served on the offeree
How long does the offeree have to clarify the details of the offer made by the offeror?
Within 7 days of service
Can an offeror withdraw their Part 36 offer if it has been accepted?
No
Can an offeror withdraw their Part 36 offer if it has not yet been accepted?
The Court’s permission is required to withdraw and offer.
Can an offeror withdraw their Part 36 offer if it has not yet been accepted and the relevant period has expired?
Yes - no need for court’s permission
Can an offeror withdraw their Part 36 offer if it has not yet been accepted and the relevant period has not yet expired and the offeree does not accept during the relevant period?
The revocation will take effect at the end of the relevant period, if the offeree does not serve notice of acceptance during the relevant period.
What happens if an offer gives notice of their withdrawal of their Part 36 offer, then the offer is accepted by the other party before the expiry of the relevant period?
- the offeror needs permission of the court to withdraw
- within 7 days of the notice of acceptance
If an offeror withdraws their Part 36 offer and it has not yet been accepted and the relevant period has not yet expired and the offeree accepts during the relevant period, when will the court allow the revocation?
If satisfied that there has been
- a change of circumstances since the making of the original offer and
- that it is in the interests of justice to give permission.
Is an offer considered open if the relevant period has expired?
Yes - unless the offer specifically mentions that it is time limited.
How is a Part 36 offer accpeted?
- Serve written notice of acceptance on the offeror.
- If the case is issued the acceptance also needs to be filed at court.
(No prescribed form a letter will do)
What happens to the case if a Part 36 offer is accepted?
The case is stayed.
When is payment due under a Part 36 offer?
The defendant has 14 days from acceptance to pay the settlement amount agreed unless otherwise agreed in writing.
What if the defendant accepts a Part 36 offer but does not pay?
The claimant can enter judgment against the defendant
BEFORE TRIAL
What happens with costs where a Part 36 offer is made by the either party and accepted before a trial has begun?
If the acceptance is given within the ‘relevant period’
No effect
BEFORE TRIAL
What happens with costs where a Part 36 offer is made by the defendant to the claimant and accepted by the claimant before a trial has begun?
If the acceptance is given by the claimant after the ‘relevant period’
D owes C’s costs up to the end of the RP (as normal)
THEN
C owes D’s costs for the end of the RP to acceptance
(C should have accepted D’s offer within the relevant period and so is being punished)
Delete
B
Delete
B
What happens with costs where a Part 36 offer is made less than 21 days before trial?
Court decides costs
What happens with costs where a Part 36 offer is made which relates to only part of the claim?
- If C accepts and abandons the rest of the claim, they will only get costs relating to the part accepted unless the court orders otherwise
- If C accepts and does not abandon the rest of the claim, the court will set costs unless the parties can agree.
CLAIMANT OFFER
What happens with costs where a Part 36 offer is made by the claimant to the defendant and not accepted by the defendant
AND
The Claimant is successful at trial and awarded an amount equal to or greater than the offer made?
FROM THE END OF THE RELEVANT PERIOD
The Court has discretion to award the claimant:
- additional damages of 10% for damages up to £500k
- additional damages of 5% for damages over £500k
- Up to a maximum of £75,000
- interest on damages until judgement
AND
- from the expiry of the relevant period pay the claimant’s costs on the indemnity basis and pay interest on those costs.
Interest is chargeable at an amount not more than 10% above base rate
CLAIMANT OFFER
What happens with costs where a Part 36 offer is made by the claimant to the defendant and not accepted by the defendant
AND
The Claimant is successful at trial and awarded an amount equal to or greater than the offer made?
AND
The amount won by the claimant is not damages?
FROM THE END OF THE RELEVANT PERIOD
The Court has discretion to award the claimant:
- additional damages of 10% for COSTS up to £500k
- additional damages of 5% for COSTS over £500k
- Up to a maximum of £75,000
- interest on damages until judgement
AND
- from the expiry of the relevant period pay the claimant’s costs on the indemnity basis and pay interest on those costs.
Interest is chargeable at an amount not more than 10% above base rate
CLAIMANT OFFER
What happens with costs where a Part 36 offer is made by the claimant to the defendant and not accepted by the defendant
AND
The Claimant is successful at trial but awarded an amount less than the offer made?
The claimant’s Part 36 offer will have no effect
CLAIMANT OFFER
What happens with costs where a Part 36 offer is made by the claimant to the defendant and not accepted by the defendant
AND
The Defendant is successful at trial
The claimant’s Part 36 offer will have no effect
DEFENDANT OFFER
What happens with costs where a Part 36 offer is made by the defendant to the claimant and not accepted by the claimant
AND
The Defendant is successful at trial.
FROM THE END OF THE RELEVANT PERIOD
Defendant will win:
- Costs
- Interest on costs
DEFENDANT OFFER
What happens with costs where a Part 36 offer is made by the defendant to the claimant and not accepted by the claimant
AND
The Claimant is successful at trial and gets more than D’s offer.
The defendant’s part 36 offer will have no effect
DEFENDANT OFFER
What happens with costs where a Part 36 offer is made by the defendant to the claimant and not accepted by the claimant
AND
The Claimant is successful at trial and gets less than D’s offer.
FROM THE END OF THE RELEVANT PERIOD
Defendant will win:
- Costs
- Interest on costs
BOTH OFFER
What happens where both parties have made an Part 36 offer
AND
the claimant is successful and the damages are in excess of the offer that the claimant made?
The claimant’s Part 36 offer will take effect.
BOTH OFFER
What happens where both parties have made an Part 36 offer
AND
the claimant is unsuccessful or the damages awarded are below the offer that the defendant made?
The defendant’s Part 36 offer will take effect.
BOTH OFFER
What happens where both parties have made an Part 36 offer
AND
the claimant wins less than their offer, but more than the defendant’s offer?
Neither Part 36 offer has an effect.
What happens if the Part 36 offer relates to only part of the claim and the claimant accepts and does not abandon the remainder of the claim?
the liability will be determined by the court.
What types of ADR are there?
Negotiation
Mediation
Arbitration
Med-arb
Early neutral evaluation / expert appraisal / expert evaluation
Expert determination
Conciliation
What is involved in mediation
resolution of disputes through the medium of an impartial third party – the mediator
What is involved in arbitration
dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed will be final and binding
Can only appeal to court if error in law
What is involved in Early neutral evaluation / expert appraisal / expert evaluation
processes where an independent party is appointed by the parties. The independent party will provide a non-binding assessment of the matter(s) referred to it.
What is Expert determination
Expert determination is where an independent expert on the subject matter is appointed by the parties to determine the dispute giving a binding judgement.
What is Conciliation
An independent neutral third party in helping parties to resolve their dispute. The process is usually facilitative, like a mediation, but may occasionally involve more of an evaluation, like ENE. The term has no clear meaning
If ADR is refused by a party, but the case is ultimately successful, the court may impose a cost penalty. Who will have burden of proof of showing why the court should not impose a penalty?
The refusing party (even if they won)
Can the court compel parties to go to ADR?
No
Who can discontinue a claim?
Only the claimant. Can be all or part of a claim.
What is the effect of discontinuance?
- It ends the proceedings in relation to the claim / part of claim discontinued (CPR 38.5(2));
- The claimant is liable to pay the defendant’s costs up to the point of discontinuance, unless the court orders otherwise
What is the procedure for discontinuance?
- File a notice of discontinuance at court.
- Serve a copy on every party.
- Discontinuance takes effect from the date of service.
- Upon discontinuance, a costs order is deemed to have been made in the defendant’s favour on the standard basis.
If a party wishes to keep a Tomlin order secret, should they attach the agreement to the Order filed at Court?
No - but it should refer to the agreement by date stating it to be confidential
Once proceedings have started, must a settlement order be sought from the court?
Yes, the parties making an agreement between them is not sufficient to stay the proceedings.
Is the case stayed on acceptance of a Part 36 offer?
Yes
Does a Part 36 offer need to be shown to the court?
No - it is without prejudice save for costs
