Settlement, including Offers to Settle

Question 1

In which circumstances can a Part 36 offer be made?

Answer 1

In respect of any claim, counterclaim, or other additional claim, or an appeal or cross-appeal.

Question 2

What is a Calderbank offer?

Answer 2

A letter containing an offer that is privileged save as to costs. Not to be confused with a Pt 36 offer.

Question 3

What are the 5 requirements for a valid Part 36 offer?

Answer 3

1. Must be in writing.
2. Must be clear that it is made pursuant to Pt 36.
3. Must specify a period of no less than 21 days within which D will be liable for C’s costs if offer accepted.
4. Must state whether it relates to whole or part of a claim.
5. Must state whether it considers any counterclaim.

Question 4

What are the two additional requirements for a valid Pt 36 offer from a defendant?

Answer 4

1. An offer to pay a sum of money must be an offer to pay a single lump sum (with limited exceptions).
2. D’s offer won’t be treated as a Pt 36 offer unless the offeree accepts.

Question 5

How is a Pt 36 offer made?

Answer 5

Either by letter (usual format), or by prescribed form (N242A).

Question 6

When will a Pt 36 offer be considered made?

Answer 6

When it is served on an offeree. CPR 6 rules of service apply.

Question 7

How can a Pt 36 offer be clarified?

Answer 7

The offeree can seek clarification of any terms within 7 days of service.

Question 8

If a Pt 36 offer has been accepted, can it be withdrawn?

Answer 8

No. Once accepted, cannot be withdrawn and terms cannot be changed.

Question 9

If the trial has started, can a Pt 36 offer be withdrawn?

Answer 9

With court’s permission.

Question 10

If the relevant period has expired, can a Pt 36 offer be withdrawn?

Answer 10

Can be withdrawn or terms changed without court’s permission.

Can also be automatically withdrawn at the end of the RP if the terms state.

Question 11

If the relevant period has not expired, can a Pt 36 offer be withdrawn?

Answer 11

Any notice of withdrawal/change during the RP takes effect at end of RP if offeree doesn’t serve notice of acceptance during RP.

If notice of acceptance is served during RP (despite notice of withdrawal/change), offeror can either allow acceptance or apply for permission to change terms/withdraw. This must be within 7 days of notice of acceptance.

Question 12

In which circumstances will the court permit changes to or withdrawal of Pt 36 offer?

Answer 12

If it is satisfied there is change of circumstances and it is in the interests of justice.

Question 13

How can a Pt 36 offer be accepted?

Answer 13

By serving written notice of acceptance on the offeror (no prescribed form), and on the court is the case has been issued.

Question 14

What happens if a Pt 36 offer is accepted?

Answer 14

The claim is stayed.

D has 14 days from date of acceptance to pay the amount agreed unless otherwise agreed in writing.

Question 15

What can C do if D fails to pay the amount agreed in a Pt 36 offer within the specified period?

Answer 15

Can enter judgment against D.

Question 16

If D’s offer is accepted before the end of the RP, what costs is C entitled to?

Answer 16

Costs up to the date notice of acceptance is served.

Question 17

If D’s offer is accepted after the end of the RP, what costs is C entitled to?

Answer 17

Court will determine liability for costs unless the parties agree, but must order that C is awarded costs up to the date the RP expired, and that the offeree pays offeror’s costs for the period from the date of expiry of RP to date of acceptance.

Question 18

If D’s offer is made less than 21 days before trial and accepted, what costs is C entitled to?

Answer 18

Parties should try and agree liability.

If they don’t, court determines.