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Dispute Resolution > Settlement > Flashcards

Settlement Flashcards

1
Q

When can a part 36 offer be made?

A

Any time, including before proceedings

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2
Q

Who can make a part 36 offer?

A

Either party

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3
Q

What are the requirements of a Part 36 offer?

A
  • 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
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4
Q

What does relevant period mean in terms of a Part 36 offer?

A

period which defendant liable for claimant’s costs if offer accepted

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5
Q

What are the further requirements of a Part 36 offer where it is made by the defendant?

A
  • offer to pay money must be single sum
  • where offer to pay later than 14 days following acceptance, not part 36 unless offeree accepts
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6
Q

When is the Part 36 offer made?

A

when served on offeree

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7
Q

When can an offeree seek clarification of a Part 36 offer?

A

within 7 days of service

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8
Q

When can a part 36 offer not be varied or withdrawn?

A

when accepted

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9
Q

When is court permission required to withdraw a part 36 offer?

A

When trial started

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10
Q

When is court permission not needed to withdraw a part 36 offer?

A

When relevant period expires

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11
Q

When does notice of withdrawal/change of a part 36 offer take effect if made during the relevant period?

A

After relevant period ends

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12
Q

What are the offeror of a part 36 offer’s options where the offeree has given notice of acceptance within the relevant period?

A
  • accept notice of acceptance
  • aplpy to court for permission to withdraw/change
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13
Q

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?

A

within 7 days of notice of acceptance

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14
Q

What reasons may the court give permission to vary/withdraw a part 36 offer?

A
  • change of circumstances
  • interests of justice
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15
Q

How is a part 36 offer accepted?

A
  • Serve written notice of acceptance
  • If case issued – also file acceptance at court
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16
Q

What are the consequences of acceptance of a part 36 offer?

A
  • claim stayed
  • settlement sum
  • costs
17
Q

How long does a defendant have to pay a settlement sum after acceptance of a part 36 offer?

A

14 days

18
Q

What happens where a defendant does not pay the part 36 settlement sum?

A

Claimant can enter judgement without starting new proceedings

19
Q

What are the costs consequences if a claimant accepts a part 36 offer within the relevant period?

A

Entitled to costs of proceedings up to service of notice of acceptance

20
Q

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)?

A
  • Claimant awarded costs up to date of expiry
  • defendant awarded costs after date of expiry up to acceptance
21
Q

What are the special rules where a part 36 offer is accepted less than 21 days before trial?

A

Court must determine costs

22
Q

What is the trigger where a claimant has failed to accept a defendant’s part 36 offer?

A

claimant fails to obtain more advantageous judgement than offer

23
Q

What are the consequences imposed on a claimant where it has failed to accept a part 36 offer and the trigger is met?

A
  • pays defendant’s costs from date of expiry
  • PLUS interest on those costs
    For costs before expired - usual costs rules apply
24
Q

What is the trigger where a defendant has failed to accept a claimant’s part 36 offer?

A

judgement against defendant is at least as advantageous to claimant as offer

25
Q

What are the consequences imposed on a defendant where it has failed to accept a part 36 offer and the trigger is met?

A
  • 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
26
Q

What are the additional amounts for a defendant’s costs consequences for failure to accept a part 36 offer?

A

o 10% up to £500,000
o 5% above £500,000
o Capped at £75,000

27
Q

When will the part 36 consequences not apply?

A
  • 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
28
Q

How do parties usually record their settlement?

A

Consent order

29
Q

What are the two types of consent orders?

A
  • consent order based on contract
  • consent order not based on contract
30
Q

Which type of consent order is more likely to be altered or varied by the court?

A

Consent order not based on contract

31
Q

What are the two parts to a Tomlin order?

A

1 - public
2 - confidential

32
Q

Why would a client want a Tomlin order?

A
  • Parties want settlement terms to be confidential and/or
  • Agreed settlement terms go beyond what court can generally order
33
Q

Which part of the tomlin order will contain the actions to be taken by court for example costs assessment?

A

Public part

34
Q

Do consent/tomlin orders require court approval?

A

Yes

35
Q

What effect does the court making a consent/tomlin order have?

A

Same as any other court order

36
Q

What is the effect if an application for a consent/tomlin order is made whilst a claim is stayed?

A

treated as application also to have stay lifted

37
Q

What happens where parties agree to settle before proceedings are issued?

A
  • no need for consent/tomlin order
  • recorded in settlement agreement
38
Q

What is the process for consent orders regarding interim applications?

A

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

39
Q

Is the court obliged to approve a consent order regarding an interim application?

A

No

Dispute Resolution (16 decks)

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