Settlement (including offers to settle)

Question 1

what is a part 36 offer?

Answer 1

a provision in which aims to encourage parties to try to settle their disputes by setting out the costs consequences of offers to settle if they are made in accordance with a part 36.

Question 2

true or false:
if a party fails to accept a realistic offer made from the other side, there is a risk of penalised costs and interests at the end of the case.

Answer 2

true.

Question 3

true or false:
a part 36 offer may be made at any time including before the commencement of proceedings.

Answer 3

true.

Question 4

true or false:
part 36 offers may be made in relation to appeals and those offers will apply only to the appeal

Answer 4

true

Question 5

How long can part 36 offer specify for it to be accepted?

Answer 5

21 days

Question 6

what happens if a part 36 offer isn’t accepted and the party doesn’t beat the offer?

Answer 6

there will be costs consequences

Question 7

true or false:
a part 36 offer can be made on a ‘without prejudice, save to costs’ basis?

Answer 7

true

Question 8

when will the court be informed of a part 36 offer?

Answer 8

when the issue of costs falls to be considered.

Question 9

true or false:
a part 36 offer can be an offer of non-monetary as well as a sum of money?

Answer 9

true

Question 10

what must be required for a part 36 offer?

Answer 10

it must be in a N242A form.
this must be in writing and state the consequences of the part 36
it must state the offer that is made to settle the whole claim or on only part of it
state whether the offer takes into account any counterclaim
it must be a genuine offer to settle,
it must specify an acceptance period of not less than 21 days within which D ill be liable for the claimant’s costs if the offer is accepted.
state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so, to which part or issue.
contain sufficient information to allow the offeree to consider the offer which will be necessary where the offer relates to a non-money claim

Question 11

when can a part 36 offer be withdrawn?

Answer 11

if it’s not time limited, you can still withdraw or change its terms so that it’s less advantageous to the other side
if the other side hasn’t accepted the part 36 offer, you may withdraw or vary at any time after the relevant period has expired, court’s permission not needed.

Question 12

under 36.10, how can a party withdraw before the relevant period expires

Answer 12

notice of withdrawal or variation needs to be served on other side.
this will take effect at the end of the relevant period unless the other party has served notice of acceptance.
the other side’s acceptance will take effect unless you successfully apply to the court within 7 days of the acceptance so that permission is granted to withdraw the offer or change its terms.

Question 13

under 36.11, how will acceptance be done if within the relevant time period?

Answer 13

if offeree accepts, the offeree will pay settlement sum and offeror legal costs

Question 14

true or false:
if the part 36 offer isn’t agreed upon, the costs will be assessed by the court and the court will resolve any doubt which it may have as to the costs if they are whether or not reasonable or proportionate and then the matter will be settled.

Answer 14

true

Question 15

if the offeree accepts after the relevant time period expires, what will happen?

Answer 15

the court will make a costs order if parties can’t agree on the liability for costs.

Question 16

true or false:
if D rejects offer and the claim proceeds to trial, the trial judge won’t be told about the offer until the case has been decided. if C obtains a judgment which is equal to or more significant than the offer made at the trial, D will have to pay what ever the amount the court awards unless if the court considers it unjust.

Answer 16

true

Question 17

true or false:
where it is alleged that multiple D’s have several liability to C, C may accept the part 36 offer and continue with their claims against the other D’s (if they are entitled to do this)

Answer 17

true

Question 18

what are the cost consequences on acceptance?

Answer 18

D is only liable for costs incurred up to the end of the relevant period. if accepted after that date, the presumption is that the offeree pays the costs from expiry to acceptance.

Question 19

what are the cost consequences on non-acceptance?

Answer 19

these start running from the expiry of the relevant period.

Question 20

true or false:
sufficient information should become available at the pre-action stage to enable a part 36 offer to be formulated.

Answer 20

true

Question 21

true or false:
when making a part 36 offer alone is not considered as a reasonable attempt to use ADR prior to the issue of proceedings as it doesn’t provide for the exploration of issues or options.

Answer 21

true.

Question 22

true or false:
a part 36 offer is a negotiation process are subject to contractual principles in which consideration must be needed as the agreement becomes binding and the lawyer who acts as the agent has a professional duty to ensure terms are complete and clear.

Answer 22

true

Question 23

true or false:
once the part 36 offer is agreed, the settlement binds the parties immediately unless it is stated otherwise

Answer 23

true

Question 24

what are joint settlement meetings and which claims are they used in?

Answer 24

it’s a meeting between parties to try and settle a compensation claim and it’s an alternative dispute resolution to resolve disputes, promote amicable settlements, reduce legal costs, preserve court resources and avoid the stress of court trials.

Question 25

what must the offeree do in order to clarify the offer?

Answer 25

they may request within 7 days of a part 36 offer being made request the offeror to clarify the offer.

Question 26

if the offeror doesn’t give the clarification, what may the offeree do?

Answer 26

they may apply for an order that the offeror do so unless the trial has started.

Question 27

if the court makes an order for clarification, what must the court specify?

Answer 27

the date when the part 36 offer is to be treated as having been made.