Settlement Flashcards
When can a part 36 offer be made?
Any time, including before proceedings
Who can make a part 36 offer?
Either party
What are the requirements of a Part 36 offer?
- in writing
- clearly made pursuant to Part 36
- Relevant period no less than 21 days
- Whether relates to whole/part of claim
- whether considering any counterclaim
What does relevant period mean in terms of a Part 36 offer?
period which defendant liable for claimant’s costs if offer accepted
What are the further requirements of a Part 36 offer where it is made by the defendant?
- offer to pay money must be single sum
- where offer to pay later than 14 days following acceptance, not part 36 unless offeree accepts
When is the Part 36 offer made?
when served on offeree
When can an offeree seek clarification of a Part 36 offer?
within 7 days of service
When can a part 36 offer not be varied or withdrawn?
when accepted
When is court permission required to withdraw a part 36 offer?
When trial started
When is court permission not needed to withdraw a part 36 offer?
When relevant period expires
When does notice of withdrawal/change of a part 36 offer take effect if made during the relevant period?
After relevant period ends
What are the offeror of a part 36 offer’s options where the offeree has given notice of acceptance within the relevant period?
- accept notice of acceptance
- aplpy to court for permission to withdraw/change
What is the time limit where an offeror wants to apply to court to vary/withdraw an offer and there has been notice of acceptance during the relevant period?
within 7 days of notice of acceptance
What reasons may the court give permission to vary/withdraw a part 36 offer?
- change of circumstances
- interests of justice
How is a part 36 offer accepted?
- Serve written notice of acceptance
- If case issued – also file acceptance at court
What are the consequences of acceptance of a part 36 offer?
- claim stayed
- settlement sum
- costs
How long does a defendant have to pay a settlement sum after acceptance of a part 36 offer?
14 days
What happens where a defendant does not pay the part 36 settlement sum?
Claimant can enter judgement without starting new proceedings
What are the costs consequences if a claimant accepts a part 36 offer within the relevant period?
Entitled to costs of proceedings up to service of notice of acceptance
How must the courts determine costs liability where the Part 36 acceptance was after the expiry of the relevant period (unless unjust to do so)?
- Claimant awarded costs up to date of expiry
- defendant awarded costs after date of expiry up to acceptance
What are the special rules where a part 36 offer is accepted less than 21 days before trial?
Court must determine costs
What is the trigger where a claimant has failed to accept a defendant’s part 36 offer?
claimant fails to obtain more advantageous judgement than offer
What are the consequences imposed on a claimant where it has failed to accept a part 36 offer and the trigger is met?
- pays defendant’s costs from date of expiry
- PLUS interest on those costs
For costs before expired - usual costs rules apply
What is the trigger where a defendant has failed to accept a claimant’s part 36 offer?
judgement against defendant is at least as advantageous to claimant as offer
What are the consequences imposed on a defendant where it has failed to accept a part 36 offer and the trigger is met?
- Interest on award at rate not exceeding 10% above base rate for some/all of period from expiry
- Costs at end of expiry assessed on indemnity basis
- Interest on those costs at rate not exceeding 10% above base rate
- Additional amount based on percentage
What are the additional amounts for a defendant’s costs consequences for failure to accept a part 36 offer?
o 10% up to £500,000
o 5% above £500,000
o Capped at £75,000
When will the part 36 consequences not apply?
- Offer made within 21 days of trial (unless court shortens relevant period)
- Part 36 offer withdrawn
- Part 36 offer changed so terms less advantageous to offeree and offeree has beaten less advantageous offer
How do parties usually record their settlement?
Consent order
What are the two types of consent orders?
- consent order based on contract
- consent order not based on contract
Which type of consent order is more likely to be altered or varied by the court?
Consent order not based on contract
What are the two parts to a Tomlin order?
1 - public
2 - confidential
Why would a client want a Tomlin order?
- Parties want settlement terms to be confidential and/or
- Agreed settlement terms go beyond what court can generally order
Which part of the tomlin order will contain the actions to be taken by court for example costs assessment?
Public part
Do consent/tomlin orders require court approval?
Yes
What effect does the court making a consent/tomlin order have?
Same as any other court order
What is the effect if an application for a consent/tomlin order is made whilst a claim is stayed?
treated as application also to have stay lifted
What happens where parties agree to settle before proceedings are issued?
- no need for consent/tomlin order
- recorded in settlement agreement
What is the process for consent orders regarding interim applications?
a) CO drawn up recording agreement
b) CO filed at court (ideally when application notice filed)
c) Applicant usually invites court to consider paper application without a hearing
Is the court obliged to approve a consent order regarding an interim application?
No
