Settlement (Part 36) and Calderbank Offers

Question 1

What is the diffrence between a calderbank offer and Part 36 offer?

Answer 1

Part 36 provides a “self-contained” procedural code for making, withdrawal and acceptance of settlement offer

Part 36 has its own specific provision relating to making of offers to settle and cost consequence that follow.

A “Calderbank Offer” is a written offer to settle stated to be “WITHOUT PREJUDICE AS TO COSTS”, the words expressed to distinguish the offer from an open offer or a normal without prejudice offer

Provided there’s genuine attempt to settle, an offer made without prejudice save as to costs WILL BE PROTECTED FROM disclosure to the court WITHOUT JOINT CONSENT OF BOTH PARTIES until all question of liability and remedies decided.

Question 2

What are the implication of winning or losing a Calderbank offer

Answer 2

Calderbank offer may result in the winning party having to pay some or even all of the offerors cost from the date of winner shld have responded to the calderbank offer

Calderbank don’t attract cost consequence of PArt

Question 3

What must be the form and content of Part 36 offer to be a valid Part 36 offer?

Answer 3

1. Be in writing
2. Make clear its pursuant to Part 36
3. Specify period of not less than 21 days during if the offeree accepts the offer, the D will pay the offeree cost (CPR 36.13)

Rmbr- 44.2 (General court power)
36.13- Cost consequence of Part 36

4. State whether it relates to whole or part of the claim
5. State whether take into account any counterclaim

(FORM N242A)-template making Part 36

Rmbr that A part 36 offer can be made at any time (CPR 36.7), usually 21 days before proceedings.

Question 4

Which type of claim is app for Part 36 offer

Answer 4

Mainly monetary claims. To settle a claim by payment of lump sum. However, the process can also be used in non-monetary claims. Ex: injunction where the offer may set out the acceptable terms.

Question 5

CPR 36.5(1)(c) mentions the relevant period for which Part 36 offer should be accepted

Answer 5

Relevant period = 21 days CPR 36.5(1)(c)

In the case of an made not less than 21 days before a trial or such a longer period as the parties may agree;
otherwise the PERIOD UP TO THE END OF SUCH TRIAL

Question 6

Does an offeror have to set out separately in Part 36 offer the amount of interest that he is prep to pay on the sum offered in settlement?

Answer 6

No. (CPR 36.5(4)

Part 36 offer to pay or offers to accept a sum of money will be treated as inclusive of all interest until:

a) the date on which the period specified under CPR 36.5(1)(c) expires or

b) if 36.5(2) applies

A part 36 offer excluding interest IS NOT VALID OFFER

Question 7

Rmbr where a party accepts a part 36 offer, when must the person make payment?

Answer 7

CPR 36.14 (6) - the sum should have been paid to the C within 14 days of the date of acceptance, unless the parties have agreed otherwise

CPR 36.14(1) - Where a part 36 offer is accepted the claim will be stayed.

IF the person does not pay within 14 days of acceptance of the offer, the C MAY enter judgment for the unpaid sum.