Settlement

Question 1

How does negotiation work legally?

Answer 1

It’s contractual, based on offer, acceptance etc

Question 2

What can a Part 36 offer be made about?

Answer 2

about a whole claim, part of a claim, a counterclaim, additional claim, appeal or cross-appeal

Question 3

What is a Calderbank offer?

Answer 3

An offer which is without prejudice save as to costs but does not attract the procedure under part 36

Question 4

In general, what principle should the court apply where there a part 36 offer is intended but there is a technical defect?

Answer 4

Try and cure it - it should prefer the construction which gives effect to Part 36

Question 5

Will the court allow a part 36 offer which does not comply with the mandatory requirements?

Answer 5

No - to get the benefit of part 36, you need the mandatory requirements present

Question 6

Can a Part 36 offer made in the process of the claim have a costs implication on appeal?

Answer 6

No, but part 36 offers can be made on appeal, and can then have a costs implication on the appeal

Question 7

How must a part 36 offer be made?

Answer 7

in writing, it must make clear it is a part 36 offer

Question 8

What must a part 36 offer include?

Answer 8

The offer

It must specify a period of at least 21 days after which D will be liable for C’s costs if the offer is accepted

It must make clear whether it applies to the whole claim or part of the claim

It must state whether it takes into account any counterclaim

Question 9

When does a part 36 offer not need to specific a time after which D is liable for C’s costs?

Answer 9

If it is made within 21 days of trial

Question 10

If the part 36 offer is to pay a sum of money, what is the approach to interest on that amount?

Answer 10

It is considered inclusive of interest up until the end of the specified period

Unless, it was made less than 21 days before trial, then it is inclusive of interest up until the date 21 days after the offer was made

Question 11

If the part 36 offer is to receive a sum of money, what is the approach to interest on that amount?

Answer 11

An offer to accept money can specify the way in which interest will be accrued after the specified period or 21 days after the offer was made (if made less than 21 days before trial).

If it does not specify this, the offer is treated as inclusive of interest up until the point it is accepted, regardless of when that is

Question 12

If a Part 36 offer includes details of costs, or is a global offer inclusive of costs, what does this mean?

Answer 12

It is not a part 36 offer

Question 13

If an offer to pay a sum of money does not include an amount of interest in line with part 36, what is the effect?

Answer 13

It is not a part 36 offer

Question 14

What happens if an offer is made late (less than 21 days before trial) and the trial is then adjourned?

Answer 14

remains a late offer

Question 15

What is the effect of a late Part 36 offer?

Answer 15

It does not have to specify a relevant period

Relevant period is until the end of trial

does not have the automatic cost consequences - court must decide if parties cannot agree costs

Question 16

If D offers a sum of money in settlement of a claim, what form must this offer take?

Answer 16

A single payment

Will not be treated as a Part 36 offer if it is an offer of payment later than 14 days following acceptance unless C accepts the offer

Question 17

When can a part 36 offer be made?

Answer 17

at any time, including before proceedings have started

Question 18

When is a part 36 offer made?

Answer 18

When it is served on the offeree

Question 19

What is the process if the Part 36 offer is not clear?

Answer 19

The recipient of the offer can request clarification within 7 days of the offer being made

Question 20

What happens if clarification is not provided?

Answer 20

It should be provided within 7 days of the request. If not can apply to the court for an order that they do so

Any such order must be give the date on which the offer is to be treated as having been made

An order cannot be sought if the trial has started

Question 21

How does the offeror withdraw or change the terms of a part 36 offer?

Answer 21

by serving written notice

Question 22

When can the offeror not withdraw or change the terms of a part 36 offer?

Answer 22

When the offer has been accepted

Question 23

When does the withdrawal/change take effect?

Answer 23

When it is served on the offeree

Question 24

What is the effect of a change of terms that is more advantageous to the offeree?

Answer 24

It counts as a new offer, not as a change.

Relevant period will be 21 days or any longer period identified

Question 25

What is the effect of a notice to change or withdraw an part 36 offer if the relevant period has not expired?

Answer 25

If the offeree does not accept the original offer in the relevant period, the notice takes effect on the expiry of the relevant period If the offeree accepts the original offer, the acceptance has effect unless the court gives permission for the change or withdrawal

Question 26

What is the procedure for applying for permission to change or withdraw a part 36 offer which is accepted in the relevant period?

Answer 26

An application to court must be made within 7 days of the offeree's notice of acceptance or the first day of trial, whichever is first

Question 27

What is the test for whether permission will be given for the amendment of a part 36 offer accepted during the relevant period ?

Answer 27

Must be satisfied that there has been a change or circumstance and it is in the interests of justice to give permission

Question 28

Does making a subsequent part 36 offer withdraw any previous offers?

Answer 28

No

Question 29

When is the court's permission required to accept a part 36 offer?

Answer 29

When the trial has started

Question 30

What will the court do if it does give permission to accept a part 36 offer?

Answer 30

It will make an order dealing with costs unless costs have been agreed between the parties

Question 31

What is the general rule for costs following acceptance of a part 36 offer within the relevant period?

Answer 31

C gets costs up until the date on which acceptance of the offer was served

Question 32

What happens if D make the offer on part of a claim, C accepts it and the abandons the rest of the claim?

Answer 32

C is only entitled to costs of the part of the claim settled unless court orders otherwise

Question 33

How will costs be assessed if not agreed under part 36?

Answer 33

Standard basis

Question 34

When must the court make an assessment of costs?

Answer 34

When a part 36 offer is accepted: which was issued less than 21 days before trial was accepted after the relevant period (and relates to the whole claim) which is an offer over part of the claim

Question 35

What is the usual order for the court to make where a part 36 offer over the whole claim is accepted after the relevant period ends?

Answer 35

C is awarded costs up to the end of the relevant period Offeree pays offeror's costs after the end of the relevant period and up until the offer was accepted

Question 36

When will the court depart from the usual order for a part 36 offer accepted after the relevant period ends?

Answer 36

When, having had regard to all the circumstances of the case, it would be unjust to do so

Question 37

What other effects does acceptance of a part 36 offer have?

Answer 37

Claim will be stayed on the terms of the offer (either the whole or part of the claim)

Question 38

if approval is needed when is acceptance of a part 36 offer deemed to have been completed?

Answer 38

When it is given approval by the court - it is then that it would be stayed

Question 39

When must payment be made under an accepted part 36 offer?

Answer 39

Within 14 days of acceptance unless otherwise agreed between the parties

Question 40

What is the terms of the agreement are not satisfied with the time period?

Answer 40

C may enter a judgment against D. Or may enforce the terms of the offer without a new claim

Question 41

When can C accept a part 36 offer from on or more but not all D's?

Answer 41

If D's are sued jointly or in the alternative, C can accept if they discontinue the claim against those defendants who have not made an offer and those D's give written consent to her accepting If C claims Ds are severally liable, D may accept the offer and continue the other claims In each case, C must apply to the court to accept the offer

Question 42

Can a part 36 offer be disclosed to proceedings?

Answer 42

No - it's without prejudice save as to costs

Question 43

When can a part 36 offer be disclosed to the trial judge?

Answer 43

Where the defence of tender before claim is raised Where the claim is stayed following acceptance of the offer Where part of the claim is settled by part 36, that part 36 can be disclosed Where the parties who made and received the offer agree in writing to disclose

Question 44

What are the triggers for the costs consequences for part 36 offers following judgment?

Answer 44

The claimant failing to obtain a judgment more advantageous than D's part 36 offer Judgement against D is at least as advantageous to C as C's part 36 offer

Question 45

What will D receive if they win a part 36 offer?

Answer 45

Costs awarded after the end of the relevant period interest on those costs

Question 46

What does C get if it wins?

Answer 46

Interest at a rate a maximum of 10% above the base rate for some or all of the period after the relevant period expired (applied to costs too) Costs on an indemnity basis from when the relevant period expired An additional amount not exceeding £75,000 which is a percentage ofthe monetary award (or costs if no monetary award given)

Question 47

What is the percentage for a successful part 36 offer for C if the amount awarded was up to £500,000?

Answer 47

10% of the amount awarded

Question 48

What is the percentage for a successful part 36 offer where the amount awarded was over £500,000?

Answer 48

10% up to £500,000 Then 5% thereafter (up to max of £75,000)

Question 49

Under what circumstances can the court not award the part 36 cost orders?

Answer 49

When it appears unjust to do so. Otherwise it must

Question 50

Do these cost awards apply when the offer is made less than 21 days before trial?

Answer 50

No

Question 51

If an offer is for a lump sum and periodical payments, what will count as a more advantageous offer?

Answer 51

Where both the lump sum and periodical payments are beaten

Question 52

When D is awarded costs as a result of beating a part 36 offer, on what basis are they generally given?

Answer 52

Standard