Settlement

Question 1

Calderbank offer

Answer 1

Offer communicated in writing ‘without prejudice save as to costs’

Cannot be referred to judge until costs considered at trial

Question 2

Part 36 offer requirements

Answer 2

In writing
Clear it is made pursuant to part 36
Specify period of not less than 21 days within which defendant will be liable for c’d costs if accepted
State if relates to whole or part of claim
State if takes into account counterclaim

Question 3

Part 36 offer

Answer 3

Offer to settle for specified amount plus paying the party’s costs

Question 4

Can part 36 offer be in instalments

Answer 4

No - must be single sum of money

Question 5

Timing of part 36 offer

Answer 5

Any time - including pre-action

Question 6

Withdrawal

Answer 6

If already accepted - cannot be withdrawn

If trial started - court’s permission required

If relevant period expired - can he withdrawn or terms changed without court permission

If relevant period not expired - any notice of withdrawal will take place at end of relevant period if offeree does not accept
- if they do accept, despite notice of withdrawal, offeror can allow acceptance or apply to court for withdrawal
- court will give permission if satisfied change of circs since making offer and would be in interest of justice to give permission

Question 7

Acceptance of part 36 offer

Answer 7

Serve written notice of acceptancr

Question 8

Consequences of acceptance

Answer 8

Claim stayed

D has 14 days from acceptance to pay unless agreed in writing

Question 9

Cost consequences of acceptance of part 36

Answer 9

In relevant period - c entitled to costs of proceedings up to date notice of acceptance servef

After expiry of relevant period - court determine liability for costs unless parties agree. Unless unjust, court must award
- claimant costs up to expiry of relevant period
- offeror its costs from then to acceptance

Question 10

Accepting part 36 offer which relates to part of a claim

Answer 10

If C abandons remainder - c will only be entitled to costs relating to part of claim contained in offer unless court orders otherwise

If C does not abandon remainder - liability determined by court unless parties reach agreement

Question 11

Defendant’s Part 36 offer - not accepted

Answer 11

Trigger - does C fail to obtain judgment more advantageous than D’s Part 36 offer?

Cost consequences if C received same or less
- unless injust, C must pay D’s costs from end of relevant period plus interest and their own costs

Costs before expiration of relevant period - usual rules apply

Question 12

Claimant’s part 36 offer - not accepted

Answer 12

Trigger - is judgment against D at least as advantageous to C as the proposal contained in the offer?

Cost consequences if C does same or better at trial than in its own offer

Unless unjust to do so, D must pay
- indemnity costs from end of relevant period plus interest up to 10% above base rate
- interest from damages up to 10% above base rate from end of relevant period
- additional amount based on damages
10% up to £500k
5% above £500k
Capped at £75k in total

Question 13

Recording settlement where proceedings not issued

Answer 13

Form of contract - settlement agreement

Each party giving up rights in relation to the dispute

Question 14

Recording settlement where proceedings have been issued

Answer 14

Consent order - order which parties draft to reflect agreement and send to court
- court will approve and make orfer
- brings proceedings to an end
- can be enforced

Question 15

When are tomlin orders used

Answer 15

Where parties wish for key settlement terms to be confidential

When agreed terms go beyond those that court could include in consent order

Greater flexibility

Question 16

Parts of tomlin order

Answer 16

Part 1 - order - public and looks like consent order
- contains actions to be taken by court and enforceable
- costs directions recorded here

Part 2 - schedule - confidential
- contains terms of agreement
- enforceable with further court order