SQE2 Disputes Resolution Part 36 Flashcards
What is a Part 36 Offer and what must it include
Part 36 offer is a formal offer to settle a claim designed to encourage early settlement. It is without prejudice.
Requirements
- made in Court Form or letter form
- in writing
- clearly state it is a CPR Part 36
- specify period (no less than 21 days) in which to accept
- State if it refers to whole claim or just part
- State whether offer takes into account any counterclaim
How are costs always divided if Part 36 offer is accepted within relevant period?
Generally defendant will pay cost of claim to point of acceptance on standard basis
Parties may agree otherwise
When can Part 36 Offer be made? When not?
Cannot be made in small claims
Can be made at any time including before proceedings (offeror may be awarded pre-issue costs incurred)
When / How can Part 36 offer be withdrawn
Not if accepted
In relevant period
- only takes effect at end of period unless court permission
- can still be accepted in period orbs.
After Relevant Period
- can be withdrawn of amended
What can offeror of Part 36 do if they withdraw before expiry of Relevant Period but notice of acceptance is given in Relevant Period
Offeror can apply to court in 7 days after notice of acceptance to withdraw or change terms.
Court will give permission if there has been a change to circumstances since the offer was made and it is in the interest of justice.
How to accept a Part 36 offer
Acceptance must be in writing
Can be accepted at any time (even after expiry) so long as offeror has not withdrawn.
Permission needed from judge if:
- during trial; or
- C accepting from one of multiple Ds
Acceptance of claimants part 36 offer by defendant?
Within Relevant Period
- D to pay costs up to date acceptance on standard basis
After Relevant Period
- Court to decide liability of costs (unless parties agree otherwise)
Acceptance of Defendants Part 36 offer by claimant?
Within Relevant Period
- D to pay costs up to date acceptance on standard basis
After Relevant Period
- D to pay costs on standard basis only till end of relevant period
- parties to agree on cost after relevant period
- otherwise court decides (usually claimant to pay till date of acceptance)
Rejection of defendants Part 36 offer by Claimant?
If they beat the offer
- D to pay C’s costs of entire proceedings (so no effect)
Don’t beat it
- UNLESS court finds it unjust
- D to pay on standard baiss untill expiry of relevant period (deemed + 21 days)
- C to pay D costs on standard basis from date of expiry of Relevant Period (deemed + 21 days)
- D may also be awarded interest on those costs
Offer is same as result
- treated as failed to beat
Rejection of claimants Part 36 offer by Defendant?
C Fails to beat own offer
- 36 offer has no effect
C beats or matches own offer
- D to pay costs on standard basis till end of relevant period
- D to pay costs after relevant period expired on indemnity basis with enhanced interest
- Additional interest on all damages after relevant period
- may also get additional amount of damages
What will courts consider when assessing is sanction for rejecting a Part 36 offer are unjust?
Court to account of all circumstances of case including:
- The terms of any Part 36 offer,
- stage in proceedings (the later the more reasonable)
- information available to parties when offer is made
- conduct of parties with regard to giving/refusing to give info for purposes of enabling offer to be made/evaluated
- whether offer was genuine attempt to settle proceedings
How can you seek clarification on Part 36 offer?
If offer is unclear the offeree can request clarification within 7 days.
If no response in 7 days offeree can apply to court to make offeror clarify.
What sanctions for rejecting a part 36 offer can be diss-applied for being unjust?
The sanctions imposes if claimant beats own part 36 offer (which was rejected obvs)
How are additional damages awarded for defendant rejecting Part 36 offer? (Damages Only or Mixed Claims )
Damages Only or Mixed Claims
- is percentage of damages max of £75k
Amount
- 10% up to £500k
- 5% of anything exceeding £500k
How are additional damages awarded for defendant rejecting Part 36 offer? (Non-Monetary claims)
Non-Monetary claims
- percentage of costs court has ordered defendant to pay
- capped at £75k
Amount
- 10% up to £500k
- 5% on anything above £500k
