Settlement

Question 2

Does a solicitor have an implied authority to settle the clients claim prior to proceedings having been issued

Answer 2

no

Question 3

When can a part 36 offer be accepted prior to the issue of proceedings

Answer 3

clients approval

Question 4

How can negotiations be conducted

Answer 4

via orally or in writing on a without prejudice basis

Question 5

What is the effect of using without prejudice

Answer 5

Ensures negotiations cannot be referred to in court at a later date except to prove settlement terms

Question 6

What happens if settlement is reached prior to proceedings as regards costs

Answer 6

c not entitled to recover any legal costs/any interest under s69 CCA or s35A SCA 1981

Question 7

In which form must settlement take after settlement terms have been agreed?

Answer 7

in writing

Question 8

what must be included in any offer to settle?

Answer 8

all necessary terms Evans v Trebuchet Designs

Question 9

what are the formalities for a consent order per r40.6(7)

Answer 9

a) order agreed by the parties must be drawn up in the terms agreed
b) it must be expressed as being ‘by consent’
c) it must be signed by the legal representative acting for each of the parties to whom the order relates

Question 10

what effect does a consent order have

Answer 10

open to public inspection & must be within the powers of a court to order

Question 11

what does a tomlin order do

Answer 11

stays the claim on agreed terms set out in a schedule to the orde r

Question 12

When can part 36 offers be made r36.7(1)

Answer 12

before and during proceedings

Question 13

do part 36 offers apply to small claims

Answer 13

no - only in fast and intermediate

Question 14

what must a part 36 offer include to constitute a valid offer r36.5

Answer 14

a) be in writing
b) make it clear it is made pursuant to part 36
c) specify a period of not less than 21 days during which, if the offeree accets the offer, the defendant will pay the claimants costs under r36.13
d) state whether it relates to the whole of the claim, or part of it, or to an issue that rises in it, and if so to which part or issue

Question 14

can the offeror be forced to extend the relevant period

Answer 14

offeree may ask to extend the relevant period, but the court has no power to order an extension

Question 15

what happens if offeree accepts part 36 after the relevant period expiers

Answer 15

court determines costs

Question 16

when should an offeree challenge a part 36 offer

Answer 16

without delay

Question 17

which form can be used to make a part 36 claim

Answer 17

Form N242A

Question 18

when must a defendant pay part 36 offer

Answer 18

within 14 day of the claimant accepting the offer

Question 19

Holden v Holden

Answer 19

offer to pay lump sum in two instalments over a period greater than 14 days held invalid

Question 20

can an offeror make more than one part 36 offer

Answer 20

yes- can reduce the offer as time passes

Question 21

can a part 36 offer be accepted even after offeree has put forward a different proposal

Answer 21

yes- different to contract law

Question 22

when is a part 36 offer deemed to have been made r36.7

Answer 22

when served on the offeree

Question 23

can offeror change conditions/withdraw their offer so the part 36 offer is less advantageous to c

Answer 23

with court approval provided offeree has not given written acceptance

Question 24

what if c wants to increase the amount they receive?

Answer 24

serve notice of variation of OG offer under r36.9(4)

Question 25

what if an offeree is unclear on the terms of a part 36 offer

Answer 25

they can (within 7 days of receiving the offer) request clarification

Question 26

how to accept a part 36 offer

Answer 26

serving written notice of acceptance on the offeror

Question 27

what happens to a claim when the part 36 offer has been accepted?

Answer 27

claim is stayed

Question 28

what if an accepted sum is not paid within 14 days?

Answer 28

claimant may enter judgment for the unpaid sum

Question 29

what costs order will a court make where claimant accepts d’s offer late

Answer 29

r36.13(5) unless court considers it unjust:

• d ordered to pay c’s costs of proceedings up to the date on which the relevant period expired
• c ordered to pay d’s costs for the period from the date of expiry of the relevant period to the date of acceptance

Question 30

what if the parties cannot agree costs when late acceptance occurs

Answer 30

court assesses costs on a standard basis

Question 31

spill costs order

Answer 31

court penalises c for proceeding with the claim but failing to secure a judgment better for c than the part 36 order

Question 32

r36.17(3) split costs order

Answer 32

defendant is entitled to costs (inc recoverable pre-action costs) from the date on which the relevant period expired and
interest on those costs

Question 33

why is it better to offer a part 36 offer earlier

Answer 33

earlier it is done, greater chances of potential costs protection for D and more pressure on C

Question 34

interest cap per s36.17(4) on damages

Answer 34

10% above base rate

Question 35

how must interest be awarded

Answer 35

proportionate to the circumstances of the case

Question 36

what is the rule for part 36 offers involving children and protected parties

Answer 36

no settlement is binding without the court’s approval

Question 37

how to file a discontiuance

Answer 37

form n279 on all other parties + consent if required

Question 38

who is liable for costs where c discontinues the case?

Answer 38

c