Pt 36 Offers

Question 1

A part 36 offer can be made in respect of what?

Answer 1

Whole, part, or issue that arises in claim/counterclaim/additional claim or an appeal or cross appeal

Question 2

The party who make an offer is the ….

The party to whom an offer is made is the …

Answer 2

Offeror

Offeree

Question 3

A part 36 offer can be made in respect of what?

Answer 3

Whole, part, or issue that arises in claim/counterclaim/additional claim or an appeal or cross appeal

Question 4

If a PT 36 offer is made to accept or pay a sum of money, how will interest be treated?

Answer 4

Offer will be treated as inclusive of interest

Until relevant period expires or 21 days after date offer was made if made less than 21 days pre trial

Question 5

In what situations will the court’s permission be needed to accept a pt 36 offer?

Answer 5

When a trial is already in progress

Certain situations not covered by rules relating to multiple Ds

Question 6

What will the cost consequences be if an offer is accepted within the relevant period?

How will costs be assess in this scenario?

Answer 6

C will be entitled to the costs of the proceedings - including recoverable pre-action costs - UP TO the date on which notice of acceptance was served on the offeror

Costs will be assess on the standard basis if they have not been agreed by the parties

Question 7

Can a pt 36 offer be accepted outside of the relevant period?

Answer 7

Yes, as long as offer has not been withdrawn then can be accepted (this may have happened automatically upon expiry of the RP)

BUT there will be COSTS CONSEQUENCES for accepting offer outside of the RP

Question 8

What are the costs consequences if a pt 36 is accepted outside of the RP?

Answer 8

If costs have not been agreed between the parties then will be determined by the court

Court must order UNLESS it considers it UNJUST to do so that
C be awarded costs UP TO DATE on which RP EXPIRED; and
Offeree to pay offeror costs for the period from the date of expiry of the RP to the date of acceptance

Question 9

What factors will the court consider in regard to if it would be unjust to make an order?

Answer 9

All of the circumstances

Including:
A. Terms of offer
B. Stage at which offer was made
C. info available to parties when offer was made
D. Conduct of the parties in giving/refusing information
E. Whether offer was a genuine attempt to settle

Question 10

What will happen to the claim if a part 36 offer is accepted?

What if the pt 36 offer is only in relation to a part or particular issue?

Answer 10

Claim will be STAYED

Claim will be stayed as to that part/issue of/in proceedings

Question 11

If permission requires the approval of the court, when will the stay take effect?

Answer 11

Takes effect when approval has been given

Question 12

A stay following acceptance of a pt 36 offer will not impact the power of the court to do what? (2)

Answer 12

To enforce the terms of the offer

To make any costs orders needed

Question 13

If the pt 36 offer is for a single sum of money to be paid to the C, when does the money have to be paid?

If the money is not paid within this time, what can the C do?

Answer 13

Within 14 days of the acceptance - unless parties agree otherwise in writing

If not paid then C can enter judgment for the unpaid sum

Question 14

If the pt 36 offfer is for another remedy and C alleges that the other party has not honoured the terms of the agreement, what can the C do?

Answer 14

C may enforce terms without the need for a new claim

Question 15

What rules apply if the C wants to accept an offer made by 1 but not all of the Ds?

Answer 15

if the Ds are sued jointly/in alternative — C can accept offer if they discontinue their claim against the D who has not made the offer and that D gives written consent

But if C alleges that the Ds have a serveral liability, then C can accept the offer and continue their claim agaisnt the other D

Other situations, needs courts permission

Question 16

What is needed for a pt 36 offer in relation to a child to be accepted?

Answer 16

Need the approval of the court

Claim would be stayed until approval is obtained

Question 17

When can a pt 36 offer be withdrawn?

How is a pt 36 offer withdrawn?

Answer 17

Only if the oferee has NOT already served notice of acceptance

How = be serving WRITTEN notice of the withdrawal on the offeree

Question 18

How can a pt 36 offer be withdrawn after the expiry of the relevant period?

Answer 18

Normally will be the terms of the offer that it will automatically be withdrawn upon expiry of the RP

But if not, oferror can withdraw offer WITHOUT the permission of the court

Question 19

Can a pt36 offer be withdrawn before the expiry of the RP?

Answer 19

Can be — but depends on the actions of the offeree

So can serve written notice of withdrawal, and upon the expiry of the RP
If the offeree has not serve a notice of acceptance = then upon expiry of the RP notice of withdrawal takes effect

But if the offeree does serve notice of acceptance before the expiry of the RP, then the acceptance will take effect — but can then apply to court

Question 20

If a offeror has served notice of withdrawal but offeree has accepted the offer with the RP, what can the party do to avoid the acceptance taking effect?

Answer 20

Can apply to the court for permission to withdraw the offer—
Within 7 DAYS of the offeree’s notice of acceptance
Or if earlier, before the 1st day of the trial

Question 21

What will court need to be satisfied of in order to grant permission for an offeror to withdraw an offer?

Answer 21

Court may give permission for the offer to be withdrawn if it is satisfied that there has been a CHANGE OF CIRCUMSTANCES since the offer was made and that it is in the INTERESTS OF JUSTICE to give permission

Question 22

When can the terms a pt 36 offer be changed?

How can the terms of a pt 36 offer be changed?

Answer 22

Can only change terms if the offeree has NOT already served notice of acceptance

Offeror changes the terms of a pt 36 offer by serving written notice of the change of terms — notice takes effect when it is served on the offeree

Question 23

When can a offeror change the terms of a pt 36 offer to be more advantageous?

How will this be treated?

Answer 23

Any point
Treated as the making of a new pt 36 offer, so upon service a new 21 days RP begins to run in relation to the ‘new’ offer

Question 24

Can the terms of a pt 36 offer be changed, to a LESS ADVANTAGEOUS offer, after the expiry of the relevant period?

Answer 24

Yes, offeree may change terms — without the permission of the court

Question 25

Can the terms of a pt 36 offer be changed, to a LESS ADVANTAGEOUS offer, BEFORE the expiry of the relevant period?

Answer 25

• Offeror can serve notice of the change to the less advantageous offer — ‘sits of shelf’

But outcome depends on the actions of the offeree:
If offeree does NOT serve acceptance of the original offer within RP — then change of terms takes effect upon expiry of RP

But if Oferee DOES serve notice of acceptance of the original offer within RP - then that acceptance will take effect — but then offeror can apply to the court

Question 26

If a offeror has served notice of change of terms but offeree has accepted the offer with the RP, what can the party do to avoid the acceptance taking effect?

Answer 26

Can apply to the court for permission to change terms of the offer—
Within 7 DAYS of the offeree’s notice of acceptance
Or if earlier, before the 1st day of the trial

Question 27

What will court need to be satisfied of in order to grant permission for an offeror to change the terms of an offer?

Answer 27

Court may give permission for the terms of the offer to be changed if it is satisfied that there has been a CHANGE OF CIRCUMSTANCES since the offer was made and that it is in the INTERESTS OF JUSTICE to give permission

Question 28

Can the trial judge know about fact that a pt 36 offer has been made?

Answer 28

No can not know that offer been made or the terms

Pt 36 offer = “without prejudice except as to costs”

So cannot tell judge until the case has been decided

Question 29

Can parties consent to telling the trial judge about any pt 36 offers made, which have not bee accepted?

Answer 29

Yes can agree IN WRITTING

Or if a part of the case or an issue within it has already been decided and the pt 36 only related to that part or issue = then can tell judge

Question 30

When will CPR 36 cost consequences apply?

Answer 30

If ….
D makes an offer to C, C rejects the offer. Then at trial C fails to obtain an MORE ADVANTAGEOUS judgment than D’s offer.

Or; if ….

C make an offer to D, D rejects that offer. Then at trial C gets a judgment which is AT LEAST AS ADVANTAGEOUS as the offer the C made to D.

Question 31

What costs rules will apply if ….

C makes an offer which D rejects and at trial the judgment is NOT as advantageous as C offer to the D?

D makes an offer, which C rejects and at trial the judgment is more advantageous than the pt 36 offer?

Answer 31

Pt 36 costs consequences DO NOT apply, normal costs rules apply

Question 32

In relation to a money claim, What does more advantageous mean?

Answer 32

Means better in money terms by any amount

Question 33

If a C fails to obtain a judgement which is MORE ADVANTAGEOUS than the D’s 36 offer, what will the D be entitled in relation to costs?

Answer 33

Court MUST, unless it considers it unjust to do so, order that the D is entitled to

A. Costs (including pre-action costs) from the date which the RP EXPIRED; and

B. INTEREST on THOSE costs

Question 34

If a judgment is made against the D which is AT LEAST AS ADVANTAGEOUS as an pt 36 offer that the C made, what costs will the C be entitled to?

Answer 34

The court MUST, unless it considers it unjust to do so, order that the C is entitled to—

A. INTEREST on whole or part of any sum of money awarded - at a rate not exceeding 10% for some or all of the period, starting with the date the RP EXPIRED
B. Costs (including pre-action) on the INDEMNITY base from the date on which the RP EXPIRED
C. INTEREST on those COSTS,r ate not exceeding 10%
D. Additional amount not exceeding £75,000

Question 35

How will the additional amount be calculated?

Answer 35

By applying the prescribed percentage to the amount awarded to the C or if no monetary award, the sum awarded to C by the court in respect of cost

Amount = Up to £500,000, prescribed percentage = 10% of the amount awarded

Amount = Over £500,000, prescribed percentage = 10% of the first £500,000 and subject to absolute limit of £75,000, 5% of any amount above that figure

Question 36

In considering if it would be unjust to make an order as set out under 36.17, the court will consider ALL THE CIRCUMSTANCES, including ….

Answer 36

A. Terms of offer
B. Stage at which offer was made
C. info available to parties when offer was made
D. Conduct of the parties in giving/refusing information
E. Whether offer was a genuine attempt to settle

Question 37

What is a Calderbank offer?

What difference between Calder bank and pt 36 offer?

Can one still be made?

Answer 37

Calderbank = Written offer to settle made “without prejudice to costs”

Difference:
Calderbank offer will not attract the same consequences that a pt 36 offer does

Yes can still be made, preserved under pt 36.2(2)

Question 38

What restriction are there on a defendant’s pt 36 offer?

Answer 38

CPR 36.6

Offer by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a SINGLE SUM of money

Question 39

When can a pt 36 offer be made?

On what date is a pt 36 offer deemed to have been ‘made?

Answer 39

36.7

May be made at any time including before the commencement of proceedings

Pt 36 offer is made when it is SERVED on the OFFEREE

Question 40

What is the ‘relevant period’ in the context of pt 36 offers?

Answer 40

Period within which the defendant will become liable for the claimants costs if the offer is accepted

Normally = 21 days

CPR 36.3
• (g) “the relevant period” means—
◦ (i) in the case of an offer made not less than 21 days before a trial, the period specified under rule 36.5(1)(c) or such longer period as the parties agree;
◦ (ii) OTHERWISE, the period up to the END of such TRIAL.

Question 41

How is a pt 36 offer accepted?

When can a pt 36 offer be accepted?

Answer 41

By serving written notice of acceptance on the offeror

When = Offer may be accepted at any time, unless it has already been withdrawn

Question 42

Can a Pt 36 offer be clarified, what time limits are in play?

What happens if the offeror fails to provide the clarification?

Answer 42

CPR 36.8

(1) Offeree may within 7 days of a pt 36 offer being made request the offeror to clarify the offer
(2) If the offeror does not give the clarification within 7 days of receiving the request, the offeree may, unless the trial has already stated apply for an order that the offeror do so

Question 43

Do pt 36 cost consequences apply if a pt 36 is made but withdrawn?

Answer 43

NO

Question 44

Just because CPR 36.17 costs order seems ______ does not amount to unjust

To prove that an order would be unjust is a ______ obstacle

Answer 44

HARSH

FORMIDABLE

Question 45

What will be considered a genuine attempt to settle?

Answer 45

100% offer will not be considered a genuine offer — needs to be some element of give and take

But 95% offers may be enough in some case, as long as court is persuade that it is genuine offer to settle and not just being used tactically to get pt 36 benefits