DR 17

Question 1

What is a Part 36 offer?

Answer 1

A formal, without prejudice offer, to settle a claim

Question 2

Who can make a Part 36 offer and what must they specify in the offer?

Answer 2

Either party can make a Part 36 offer, and they must specify the amount they would be prepared to pay/accept to settle

Question 3

What are the five requirements of a Part 36 offer?

Answer 3

1. In writing2. Clearly state that it is made pursuant to CPR Part 363. Specify the relevant period (not less than 21 days) within which the offer can be accepted4. State whether the offer relates to all or just part of the claim5. State whether the offer takes into account any counterclaim

Question 4

What may the offeror be awarded if they make a Part 36 offer pre-issue but it is rejected by the other party, and the offeror wins the case?

Answer 4

Costs related to pre-action work, in addition to the costs of the litigation

Question 5

If a Part 36 offer is unclear, within what time limit must the offeree request clarification?

Answer 5

7 daysIf the offeror does not provide suitable clarification within 7 days, the offeree may apply to the court for an order requiring the offeror to clarify

Question 6

Can a Part 36 offer be withdrawn?

Answer 6

As long as the offeree has not served notice of acceptance

Question 7

If a notice of withdrawal or to change the terms to ones less favourable for the offeree is served before the expiry of relevant period, when does the notice take effect?

Answer 7

If the notice is served before the relevant period expires, it takes effect upon expiry of the relevant period However, if the offeree serves a notice of acceptance before expiry of the relevant period, the acceptance is valid unless the offeror receives permission to change or withdraw the offer based on changed circumstances or the interests of justice

Question 8

After acceptance, within what time limit can the offeror apply to the court to with of change the terms of the offer?

Answer 8

7 days

Question 9

What two things must the court be satisfied of to grant permission to withdraw or amend a Part 36 offer after it has accepted?

Answer 9

1. Change of circumstances since the offer was made2. In the interests of justice to give permission

Question 10

How must a Part 36 offer be accepted?

Answer 10

In writing

Question 11

When can a Part 36 offer be accepted?

Answer 11

At any time: within the relevant period with no limitations, and after the relevant period as long as the offeror has not withdrawn the offerNote: it can only be accepted during trial with permission of the judge

Question 12

If a Part 36 offer, made by either party, is accepted within the relevant period, up until when will defendant pay the costs of the claim, and on what basis will they be assessed?

Answer 12

The defendant will pay costs on the standard basis up to the point of acceptance

Question 13

If a defendant accepts a defendant’s Part 36 offer outside the relevant period, how is the defendant’s liability decided?

Answer 13

If the parties cannot agree, the court will decide

Question 14

If a claimant accepts a defendant’s Part 36 offer outside the relevant period, up until when will the defendant’s liability to pay the claimant’s costs run?

Answer 14

Until the end of the relevant period (i.e. 21 days after the offer was made)

Question 15

What may the offeror be awarded if they make a Part 36 offer pre-issue and the parties settle the claim before proceedings begin?

Answer 15

Pre-issue costs that they incurred

Question 16

Unless the parties agreed otherwise, in the situation where a claimant accepts a defendant’s Part 36 offer outside the relevant period, who pays the defendant’s costs for the period between the end of the relevant period and when the offer was accepted?

Answer 16

The claimant

Question 17

What is required to accept a Part 36 offer after trial has started?

Answer 17

Court permission

Question 18

What is required to accept a Part 36 offer from a single defendant in a case with multiple defendants?

Answer 18

Court permission

Question 19

What are the two situations where a Part 36 offer might cause cost-related difficulty for a party?

Answer 19

1. Claimant rejects defendant’s offer and fails to beat offer2. Defendant rejects claimant’s offer and claimant is awarded an amount equal to or greater than the offer

Question 20

What are the two situations where a Part 36 offer might will not cause cost-related difficulty for a party?

Answer 20

1. Claimant rejects defendant’s offer and beats it2. Defendant rejects claimant’s offer and the claimant is awarded less

Question 21

Where a claimant rejects a defendant’s offer and fails to beat the offer, what is the consequence?

Answer 21

• The defendant will usually be ordered to pay the claimant’s costs (on the standard basis) up to expiry of the relevant period and* The claimant will likely be ordered to pay the defendant’s costs (on the standard basis) incurred after expiry of the relevant period.* The defendant may also be awarded interest on the costs

Question 22

Where a defendant rejects a claimant’s offer and claimant is awarded an amount equal to or greater than the offer, what is the consequence?

Answer 22

Unless it is unjust* The defendant will likely be ordered to pay the interest on the entirety of the claim at an enhanced rate (up to 10% above base rate) for the period after the time for acceptance expired* Costs for this period (i.e. after expiry) will likely be assessed on the indemnity basis * Costs for the period up to expiry will be paid on the standard basis* Additional damages of up to 10% for the first £500,000 in damages (and 5% for amounts above) may also be available

Question 23

How is the amount to be paid by the defendant calculated in damages only or mixed claims?

Answer 23

As a percentage of the damages awarded to the claimant

Question 24

How is the amount to be paid by the defendant calculated in non-monetary claims, and what is the cap?

Answer 24

As a percentage of the costs that the court has ordered the defendant to pay the claimant, subject to a cap of £75,000

Question 25

What things will the court consider when determining whether an order for failure to accept a Part 36 is unjust, such that the court will exercise discretion not to make the order?

Answer 25

1. Terms of the offer2. State of proceedings when the offer was made3. Information available to the parties when the offer was made4. Conduct of the parties regarding making information available so that the other side can evaluate the offer5. Whether the offer was a genuine attempt to settle

Question 26

If a pre-issue Part 36 offer is rejected and the party wins the case, what might the court allow?

Answer 26

The party to recover the cost of pre action work in addition to the costs of the litigation.