Settlement

Question 1

what is a joint settlement meeting?

Answer 1

where the parties gather in order to reach a settlement, thorough negotiation and mediation techniques. parties may agree to use JSM or it may be ordered but they court. JSM is protected by the Without Prejudice principle. each party are in their own rooms then barristers from each party meet in a third room to discuss settlement offers, these are also protected with without prejudice.

Question 2

A Part 36 offer may be made in respect of the whole, or part of, or any issue that arises in—

Answer 2

(a) a claim, counterclaim or other additional claim; or
(b) an appeal or cross-appeal from a decision made at a trial.

Question 3

the meaning of “offeror”

Answer 3

the party who makes the offer

Question 4

the meaning of “offeree”

Answer 4

the party who the offer is made to

Question 5

for a part 36 offer, what meant by the “relevant period”?

Answer 5

(i) in the case of an offer made not less than 21 days before a trial, or such longer period as the parties agree;
(ii) otherwise, the period up to the end of such trial.

Question 6

what form and content is required for a valid Part 36 Offer?

Answer 6

(a) be in writing;
(b) make clear that it is made pursuant to Part 36;
(c) specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with rule 36.13 or 36.20 if the offer is accepted;
(d) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and
(e) state whether it takes into account any counterclaim.

Question 7

when does the 21 day minimum not apply for a part 36 offer

Answer 7

if the offer is amide less then 21 days before the trial.

Question 8

A Part 36 offer which offers to pay or offers to accept a sum of money will be treated as inclusive of all interest until—

Answer 8

(a) the date on which the relevant period specified expires; or
(b) if it is made less than 21 days before trial a date 21 days after the date the offer was made.

Question 9

what are the payment requirements for a defendants part 36 offer

Answer 9

Part 36 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.
A defendant’s offer that includes an offer to pay all or part of the sum at a date later than 14 days following the date of acceptance will not be treated as a Part 36 offer unless the offeree accepts the offer.

Question 10

when can someone make a part 36 offer?

Answer 10

may be made at any time, including before the commencement of proceedings.

Question 11

when is a part 36 offer made?

Answer 11

A Part 36 offer is made when it is served on the offeree.

Question 12

how does a party clarify a Part 36 offer?

Answer 12

(1) The offeree may, within 7 days of a Part 36 offer being made, request the offeror to clarify the offer.
(2) If the offeror does not give the clarification requested within 7 days of receiving the request, the offeree may, unless the trial has started, apply for an order that the offeror do so.
(3) If the court makes an order, it must specify the date when the Part 36 offer is to be treated as having been made.

Question 13

when can a Part 36 offer be withdrawn or varied?

Answer 13

A Part 36 offer can only be withdrawn, or its terms changed, if the offeree has not previously served notice of acceptance.

Question 14

how does a party withdraw or vary a Part 36 offer

Answer 14

The offeror withdraws the offer or changes its terms by serving written notice of the withdrawal or change of terms on the offeree. Such notice of withdrawal or change of terms takes effect when it is served on the offeree.

Question 15

when can a Part 36 offer be automatically be withdrawn?

Answer 15

if the relevant period has ended, ad it is specified in the Part 36 Offer terms.

Question 16

when can the offeror withdraw the part 36 offer without the permission from the court?

Answer 16

if the relevant period has ended and that the offered has not served notice of acceptance

Question 17

Where the offeror changes the terms of a Part 36 offer to make it more advantageous to the offeree—

Answer 17

(a) such improved offer shall be treated, not as the withdrawal of the original offer; but as the making of a new Part 36 offer on the improved terms; and
(b) the period specified shall be 21 days or such longer period (if any) identified in the written notice

Question 18

if the offeror has served notice of a withdrawal or change of Part 36 Offer terms before the expiry of the relevant period and the offeree does not serve notice to accept the original offer in the specified period, then —

Answer 18

the offeror’s notice has effect on that expiry of the relevant period.

Question 19

if the offeror has served notice of a withdrawal or change of Part 36 Offer terms before the expiry of the relevant period and the offeree DOES serve notice to accept the original offer in the specified period, then —

Answer 19

that acceptance has effect unless the offeror applies to the court for permission to withdraw the offer or to change its terms—
(i) within 7 days of the offeree’s notice of acceptance; or
(ii) if earlier, before the first day of trial.

Question 20

when may the court give permission for the variation or withdrawal of a part 36 offer where the offeree had served notice of accepting the original before the expiry of the relevant period?

Answer 20

the court may give permission for the original offer to be withdrawn or its terms changed 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.

Question 21

when may a party accept a Part 36 Offer

Answer 21

may be accepted at any time unless it has been withdrawn or the court requires permission

Question 22

how does a part accept a part 36 offer?

Answer 22

when the party has served written notice of acceptance of the part 36 offer

Question 23

when is the court’s permission required to accept a part 36 offer?

Answer 23

• a trial is in progress; or
• where the other rules dont apply in the case where the Claimant is accepting a part 36 offer where there are more than one defendants

Question 24

where the courts permission is required for the acceptance of the part 36 offer and the court gives permission, what happens in terms of costs?

Answer 24

unless the parties have accepted and sorted their own costs then the court MUST make an order for costs.

Question 25

what are the general costs consequences of accepting a part 36 offer?

Answer 25

save for other rules, where the part 36 offer has been accepted during the relevant period, then the claimant will be entitled to the costs of the proceedings up to the date on which the notice of acceptance was served on the offeror. this is done on the standard basis

Question 26

what are the cots consequences where a defendant’s Part 36 offer relates to part only of the claim and at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim?

Answer 26

the claimant will only be entitled to the costs of such part of the claim unless the court orders otherwise. this is done on a standard basis.

Question 27

what are the cost consequences where a Part 36 offer which was made less than 21 days before the start of a trial is accepted

Answer 27

the liability for costs must be determined by the court unless the parties have agreed the costs.

Question 28

what are the cost consequences where a Part 36 offer which does not relate to the whole of the claim is accepted at any time

Answer 28

the liability for costs must be determined by the court unless the parties have agreed the costs.

Question 29

what are the cost consequences where a Part 36 offer which relates to the whole of the claim is accepted after expiry of the relevant period

Answer 29

the liability for costs must be determined by the court unless the parties have agreed the costs.

Question 30

where a Part 36 offer which relates to the whole of the claim is accepted after expiry of the relevant period and the parties cannot agree the liability for costs, the court MUST, unless unjust to do so, order that —

Answer 30

(a) the claimant be awarded costs up to the date on which the relevant period expired; and
(b) the offeree do pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.

Question 31

what happens to the claim if the Part 36 offer is accepted?

Answer 31

the claim is stayed

Question 32

where the part 36 offer only applies to a part of the claim, then what will happen to the claim?

Answer 32

the claim will be stayed as to the part of the claim which is contained in the terms of the part 36 offer

Question 33

if the permission of the court is required for a part 36 offer, then the court’s permission is also needed for…

Answer 33

…the stay of proceedings

Question 34

how long does the defendant have to make the payment of the sum of the part 36 offer?

Answer 34

the defendant has 14 days from acceptance to pay the settlement amount agreed unless otherwise agreed in writing.

Failing which the claimant can enter judgment against the defendant.

Question 35

If the Part 36 offer does not include an offer to pay / accept a single sum of money, what happens if that a party fails to comply with whatever was agreed?

Answer 35

the aggrieved party can apply to court to enforce the terms of the offer without the need to start separate court proceedings.

Question 36

where the claimant wishes to accept a Part 36 offer made by one or more, but not all, of a number of defendants, If the defendants are sued jointly or in the alternative, the claimant may accept the offer if—

Answer 36

(a) the claimant discontinues the claim against those defendants who have not made the offer; and
(b) those defendants give written consent to the acceptance of the offer.

Question 37

where the claimant wishes to accept a Part 36 offer made by one or more, but not all, of a number of defendants, If the claimant alleges that the defendants have a several liability to the claimant, the claimant may—

Answer 37

(a) accept the offer; and
(b) continue with the claims against the other defendants if entitled to do so.

Question 38

where the claimant fails to obtain judgment more advantageous than a defendant’s part 36 offer

Answer 38

the court must, unless it considers it unjust to do so, order that the defendant is entitled to—
(a) costs (including any recoverable pre-action costs) from the date on which the relevant period expired; and
(b) interest on those costs.

Question 39

where judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer.

Answer 39

the court must, unless it considers it unjust to do so, order that the claimant is entitled to—

(a) interest on the whole or part of any sum of money (EXCLUDING INTEREST) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
(b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;
(c) interest on those costs at a rate not exceeding 10% above base rate; and
(d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is: the sum awarded to the claimant by the court; or where there is no monetary award, the sum awarded to the claimant by the court in respect of costs

Question 40

when considering whether it would be unjust to make the costs consequences of part 36 offers, what factors must the court take into consideration?

Answer 40

(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made;
(d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and
(e) whether the offer was a genuine attempt to settle the proceedings.

Question 41

costs consequences of part 36 offers following judgment do not apply to a part 36 offer which has —

Answer 41

(a) which has been withdrawn;
(b) which has been changed so that its terms are less advantageous to the offeree where the offeree has beaten the less advantageous offer;
(c) made less than 21 days before trial, unless the court has abridged the relevant period.

Question 42

what is a Calderbank letter/offer

Answer 42

A Calderbank offer is made by letter written “without prejudice save as to costs” or “without prejudice” but subject to an express reservation of the right to refer to the letter on the issue of costs should the claim proceed to judgment. It should be noted, however, that while the existence of a Calderbank letter may be a very important consideration in the exercise of the court’s discretion, it is not to be equated with a Part 36 offer.
where the part 36 offer does not meet the requirements, it may be classified as a Calderbank Offer

Question 43

if the part 36 offer is not made in accordance with the technical requirements, then it will not be subject to what?

Answer 43

the part 36 offer cost consequences.

Question 44

can a part 36 offer be validated if possible?

Answer 44

Where a party makes an offer that is intended to be a Part 36 offer but a point arises as to its construction, the court should prefer the construction, if possible, that would give effect to the stated intention and allow the offer to be effective

Question 45

what happens if the Part 36 offers are non-compliant. Commentary 36.2.4.2

Answer 45

CPR 36.2(2) now makes clear, parties are not bound to make offers in accordance with Pt 36, but if they want the substantial benefits which flow from Pt 36 then they must follow the rules in every respect.

Question 46

how can a party is to make it clear that they are making a part 36 offer?

Answer 46

• put it in the heading
• a simple statement stating it is a part 36 offer

Question 47

what is the relevant period?

Answer 47

the period of no less than 21 days which the offeree has to accept the offer

Question 48

what is a non-compliant part 36 offer?

Answer 48

an attempted part 36 offer which does not meet the requirements set out in CPR 36.5(1)

Question 49

is a term for costs in a part 36 offer allowed?

Answer 49

No. terms concerning costs in a part 36 offer will render the offer non-compliant.

Question 50

terms as to interest in a part 36 offer

Answer 50

• One of the mandatory requirements under r.36.5 is that a Part 36 offer must include all interest up to the end of the “relevant period”
• Claimants might well wish to include some such provision in their offers since otherwise they will not be able to recover any additional interest upon late acceptance.

Question 51

late part 36 offers consequences - offers made at least 21 days before trial

Answer 51

(1) removes the obligation to specify a period of at least 21 days
(2) “the relevant period” in such cases is up until the end of the trial although, as in any other case, permission will be required to accept the offer after the start of the trial
(3) there is no automatic costs order upon acceptance of a late offer; instead the court must decide the appropriate costs order if the parties cannot agree the liability for costs.
(4) late offers do not attract the usual Pt 36 consequences upon judgment unless the court abridges time.

Question 52

late acceptance of a part 36 offer. commentary 36.13.4

Answer 52

There is no presumption that the court would order a late-accepting party to pay the other party’s costs on an indemnity basis. The usual basis will be the standard basis unless (say) conduct is in issue

In Jordan v MGN Ltd [2017] EWHC 1937 (Ch); [2017] 4 Costs L.R. 687, the claimant accepted a very old Part 36 offer on the eve of trial having failed to engage properly in settlement negotiations and having turned down a number of significantly more attractive offers that had, by trial, lapsed. Mann J held that the court should not only not depart from the usual order (requiring the offeree to pay the costs from the expiry of the relevant period), but that the claimant should pay such costs on an indemnity basis.

Question 53

part 36 offers. the meaning of “more advantageous. Commentary 36.17.2

Answer 53

• The simple threshold criterion for the usual Pt 36 orders is an assessment of whether the judgment was as “advantageous” to the claimant as the offer.
• The comparison in money terms is made at the date of judgment. Accordingly, a judgment in a foreign currency falls to be converted to sterling at the exchange rate applicable at judgment

Question 54

defendant’s Part 36 offer costs consequences. Commentary 36.17.3

Answer 54

• the court must, unless it “considers it unjust to do so”, order that the defendant is entitled to costs (including any recoverable pre-action costs) from the date on which “the relevant period” expired and interest on those costs.
• Strictly speaking, the court’s order for assessment on the indemnity basis is an exercise of the court’s general discretion as to costs. An indemnity costs order made in exercise of that discretion because the case is “out of the norm” does carry at least some stigma, as it is of its nature penal rather than exhortatory.
• where the claimant has rejected a part 36 offer but carries on the claim so unreasonably should attract indemnity costs
• four factors to take into consideration are: (1) that C’s continuing with the claim after D’s payment in was not so unreasonable that they should pay costs on the indemnity basis, (2) that in essence this was not a case where justice demanded that a resounding defeat should also carry with it an award of costs on that basis, (3) that, however, certain deficiencies exposed in C’s expert evidence revealing weaknesses in their technical case took the case, in this respect, out of the norm as they had consequences of which the costs order should take account, (4) that, accordingly, certain of the costs incurred by D in dealing with that evidence should be paid by C on the indemnity basis.

Question 55

Claimant’s Part 36 offer costs consequences. Commentary 36.17.4

Answer 55

• the provision is not there to punish but to encourage settlement of the claim.
• however, this is applicable to reasonable offers.

Question 56

part 36 offers. “considers it unjust to do so” . Commentary 36.17.5

Answer 56

• requires the court to take into account all the circumstances of the case including the particular matters listed in that sub-rule. The party at risk is required to establish grounds for rendering it unjust to make the order and such must be found by the court so as to deny the offeror their costs. The question is not whether the offeree had reasonable grounds for not accepting the offer as if there were some unfettered discretion as to costs, but to consider whether the usual order would be unjust
• It is elementary that a judge who is asked to depart from the norm, on the ground that it would be ‘unjust’ not to do so, should not be tempted to make an exception merely because he or she thinks the regime itself harsh or unjust. There must be something about the particular circumstances of the case which takes it out of the norm.
• the burden is on the party suffering the consequences.

Question 57

part 36 offers. Genuine attempt to settle proceedings. commentary 36.17.6

Answer 57

• help to deal with the problem of claimants making very high settlement offers (often as much as 95% of the value of the claim) not in a genuine attempt to settle the claim but to place the defendant at risk of indemnity costs.
• the concept of settlement involved “an element of give and take” and that a settlement offer must involve some genuine element of concession.
• an example of a high but genuine attempt to settle can be for a very strong case where there was “clearly no defence” and success was a “near-certainty”.