Settlement

Question 1

Can a negotiated settlement be enforced?

Answer 1

If they have agreed terms contractually binding ( offer, acceptance, cosnideration, ICLR)

Question 2

What is a Calderbank offer?

Answer 2

offer made without prejudice, save as to costs, attempt to settle claim on specific terms (more flexible than Part 36)

Question 3

Can a Part 36 offer be made in respect to only part of a claim?

Answer 3

yes a part 36 offer may be made in relation to whole/part/specific issue in a claim.

Question 4

What is the consequence if a part 36 offer does not comply with requirements?

Answer 4

not an effective part 36 offer and therefore will not attract the cost consequences.
can still be taken into account when considering costs.

Question 5

r36.5 - A Part 36 offer must -

Answer 5

• be in writing
• make clear it is made pursuant to Part 36
• specify a period of not less than 21 days (RP)
• state whether referring to whole/part of the claim
• state whether it takes into account any CC

Question 6

Are terms as to costs and terms as to interest valid?

Answer 6

Terms as to cost will invalidate Part 36 offer as it is contrary to the scheme of consequences.
Terms as to interest - offer must include D to pay Cs interest up until end of RP. - cannot be excluded by term.

Question 7

Late offers (where offer made less than 21 days before trial) - consequences (x4)

Answer 7

• no obligation to state RP of at least 21 days
• RP ends at trial (permission needed to accept after start of trial)
• no automatic costs order - court to decide if parties cannot agree
• do not attract Pt 36 consequences unless court orders so and ‘abridges time’

Question 8

Offers to joint Cs/Ds - what will court do when it comes to cost order if split acceptance/refusal?

Answer 8

use discretion to evaluate ‘sucess’ against portion of offer and award appropriate cost consequences

Question 9

What additional stuff must a Ds offer include?

Answer 9

• statement that offer is for a single sum of money
• offer to pay all/part within 14 days (if more but offeree accepts ok)

Question 10

Time when a Part 36 offer is made.

Answer 10

• any time, inc before commencement of proceedings
• offer made when served on offeree

Question 11

If offeror requires clarification of a Part 36 offer - what can they do?

Answer 11

• request clarity from offeror within 7 days
• if Offeror does not comply within 7 days of request - unless trial has started - may apply for an order for offeror to do so (court will then specify when Part 36 offer is treated as being made)

Question 12

When may a part 36 offer be withdrawn?

Answer 12

• where RP has elapsed and offeree has not accepted it (automatic due to term, or by notice (and service of new claim))

Question 13

Where offeror changes terms of Part 36 offer to make it more advantageous for offeree - what happens to the original offer?

Answer 13

treated as making of a new Part 36 offer - original remains

Question 14

Can a Part 36 offer be withdrawn before end of RP?

Answer 14

• yes, withdrawal will take effect from end of RP
• if offeree then accepts, offeror can make application (within 7 days) to withdraw.

Question 15

How is a Part 36 offer accepted?

Answer 15

serving written notice of acceptance at any time- unless withdrawn

Question 16

What are the standard cost consequences of an accepted Part 36 offer? (within RP and outside)

Answer 16

• D to pay Cs costs (of part settled) up until date of acceptance served on offeror
• D to pay Cs costs up until end of RP, offeree to pay offerors costs up until date of acceptance served.
  UNLESS CONSIDERED UNJUST

Question 17

Other effects of a Part 36 Offer acceptance

Answer 17

• Claim will be stayed (whole or part referred to in offer)
• sum to be paid within 14 days unless agreed otherwise (if not then C may enter judgment and enforce)

Question 18

Where C wants to accept offer made by 1+ but not all Ds - how may they do so for alternative/several claims?

Answer 18

ALTERNATIVE LIABILITY
- C discontinues claim against other D’s
- obtains written consent from them for acceptance of the offer
SEVERAL LIABILITY
- accept offer
- continue with claims against other Ds
all other cases require permission.

Question 19

Where Part 36 offer is not accepted - how will it be taken into account ?

Answer 19

• without prejudice save as to costs
• MUST not be communicated to judge until case has been decided.
  unless - defence of tender before claim raised, - issue part 36 offer relates to has been decided - both parties agree

Question 20

Part 36 consequences for unaccepted offer apply where (D’s offer /C’s offer )

Answer 20

• C fails to obtain judgment MORE advantageous than D’s offer
• C obtains judgment AT LEAST as advantageous as C’s offer

Question 21

Where D’s offer > judgment - what are the consequences ?

Answer 21

• D pays C’s costs until end RP
• C pays D’s costs from end RP (inc interest)
  (N/A soft tissue claim)

Question 22

Where C’s offer -/= judgment - what are the consequences?

Answer 22

• Interest on whole/part at a rate not exceeding 10% above base rate from end RP
• D pays C’s costs until end RP
• D pays C’s costs on INDEMNITY basis from end RP
• Interest on C’s costs from end RP not exceeding 10%
• 10% of amount awarded up £500,00 and 5% on any amount above £500,000 (subject to 75k limit)

Question 23

When may the court deviate from prescribed cost consequences?

Answer 23

When they consider it unjust - taking into account all circumstances
- terms of Part 36 offer
- when offer made
- info available at time offer made
- conduct of parties
- genuine attempt to settle?

Question 24

What figures are compared when asking if C/D beat offer?

Answer 24

Amount awarded at trial NOT INCLUDING INTEREST from end RP
Amount offered
(this is because then they are comparable as both include interest until end RP but not more)