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BTC- Civil Litigation > Topic 14- Settlement > Flashcards

Topic 14- Settlement Flashcards

1
Q

What part of a claim can a Part 36 offer be made?

A

It can be made in respect of the whole or part of a claim, or appeal

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2
Q

What is the relevant period in relation to Part 36 offers?

A

This is the offer made not less than 21 days before a trial

Or the period up to the end of such trial

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3
Q

Will a Part 36 offer have consequences to costs of proceedings?

A

Yes, there will be consequences in the costs of the proceedings, but not in relation to any costs in appeal

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4
Q

What should the form of a Part 36 offer be?

A

Must be made in writing

Must make clear it is a Part 36 offer

Must specify a period of not less than 21 days which the defendant will be liable for the claimant’s costs

Must state whether it relates to the whole or part of a claim

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5
Q

Is a Part 36 inclusive of all interest?

A

Yes, until the period specified in the offer expires

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6
Q

Can a defendant make a Part 36 offer?

A

Yes

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7
Q

What stage of proceedings may a Part 36 offer be made?

A

Can be made at any time, including before the commencement of proceedings

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8
Q

When is a Part 36 offer deemed made?

A

It is deemed made when it is served on the offeree

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9
Q

Who is the offeree?

A

The party receiving the Part 36 offer

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10
Q

Who is the offeror?

A

The party making a Part 36 offer

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11
Q

Can the offeree request clarification of a Part 36 offer?

A

Yes, they must request within 7 days of a Part 36 offer being made

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12
Q

What is the process of the clarification of a Part 36 offer?

A

The offeree must request clarification within 7 days of the offer being made

If the offeror does not give the clarification within 7 days of receiving the rest, the offeree may apply for an order

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13
Q

When may a Part 36 offer be withdrawn/changed after expiry?

A

As long as the offeree has not served notice of acceptance, the Part 36 offer can be withdrawn/changed

The offeror must serve written notice on the offeree

Don’t need court’s permission

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14
Q

What is the process of withdrawing/changing a Part 36 offer after expiry?

A

The offeror must serve written notice on the offeree

No permission is needed after expiry

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15
Q

What is the effect of the offeror changing the Part 36 terms to make it more advantageous to the offeree?

A

It has the effect of making a new Part 36 offer on the improved terms

The old offer will not be withdrawn, it will still stand

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16
Q

Can the offeror withdraw/change Part 36 before the expiry?

A

Yes, as long as the offeree has not served notice of acceptance

The offeror must serve notice of the withdrawal/change

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17
Q

Can the offeror withdraw/change Part 36 offer even if the offeree has accepted the offer?

A

The offeror must apply to the court for permission to withdraw/change the offer

Within 7 days of the notice of acceptance

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18
Q

What factors should the court look at in giving permission to the offeror to withdraw/change Part 36 offer, if the offeree has given notice of acceptance?

A

They will give permission if satisfied that there has been a change of circumstances since the making of the offer, and that it is in the interests of justice

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19
Q

How is a Part 36 offer accepted?

A

The offeree must serve written notice of acceptance on the offeror

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20
Q

Can a Part 36 offer be accepted at any time?

A

Yes, as long as the offer has not been withdrawn

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21
Q

Can an old Part 36 offer be accepted, even if a new Part 36 offer has been made?

A

Yes, if the offeror has not withdrawn the old offer, the old offer can be accepted still

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22
Q

Can a Part 36 offer be accepted after the expiry of the relevant period?

A

The offeree needs the court’s permission to accept the offer after the expiry date

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23
Q

Can a Part 36 offer be accepted if the trial is in progress?

A

The offeree needs the court’s permission to accept the offer whilst the trial is in progress

24
Q

When a Part 36 offer is accepted, who is entitled to the costs?

A

The claimant will usually be entitled to the costs of the proceedings up to the date on which notice of acceptance was served

25
Q

When a Part 36 offer relating to only part of a claim is served, who is entitled to the costs?

A

The claimant will be entitled to the costs of such part of the claim

26
Q

What type of assessment is given to costs after acceptance of Part 36?

A

Assessment on a standard basis

27
Q

If a Part 36 offer was made less than 21 days before the start of a trial, how are the costs determined?

A

The court must determine the costs, as the offeror has failed to comply with the relevant period

28
Q

If a Part 36 offer was accepted after the expiry of the relevant period, how are the costs determined?

A

The claiamant is awarded the costs up to the date of expiry
AND
The offeree pays the offeror’s costs from the date of expiry to date of acceptance

29
Q

What is the effect on the claim of the Part 36 being accepted?

A

The claim will be stayed

30
Q

After acceptance of a Part 36 claim relating to a sum of money, when must the sum be paid to the claimant?

A

Within 14 days of acceptance

31
Q

If the defendant does not pay the sum of money within 14 days of accepting the Part 36 offer, what can the claimant do?

A

They may enter judgment for the unpaid sum

32
Q

If a Part 36 offer does not relate to money, and the defendant does not honour the terms of the offer, what can the claimant do?

A

They may apply to enforce the terms of the offer without the need for a new claim

33
Q

What happens when there are two defendants, and one of them makes a Part 36 offer on the claimant?

A

The claimant can only accept the offer if-
- CL discontinues the claim against the defendant who has not made the offer
AND
- The defendants give written consent to the acceptance of the offer

34
Q

What happens when there are two defendants with severed liability, and one of them makes a Part 36 offer on the claimant?

A

The claimant may accept the Part 36 offer, and continued the claim with the other defendant

35
Q

Can an unaccepted Part 36 offer be disclosed at trial?

A

No, it is treated as “without prejudice except as to costs”

It cannot be communicated in any circumstances to the trial judge

Unless the offeror and offeree agree to disclose it

36
Q

When can a Part 36 offer be disclosed at trial?

A

Where the offeror and offeree agree to disclose it

If the offer only related to part of the claim

37
Q

What is meant by “more advantageous”?

A

Better in money terms

38
Q

If a claimant fails to obtain judgment more advantageous than a defendant’s Part 36 offer, what are the cost consequences?

A

The defendant will be entitled to the costs from the date on which the relevant period of the Pt36 offer expired (assessed on standard basis)
+
Interest on those costs

39
Q

If judgment against a defendant is at least as advantageous as a claimant’s Pt36 offer, what are the cost consequences?

A

The claimant will be entitled to the whole or part of any money awarded
+
Costs on indemnity basis
+
Interests on those costs

40
Q

What must the court look at in deciding whether it is just to make an order seen in 36.17?

A

The terms of the Part 36 offer

The stage in proceedings the offer was made

The info available to the parties at the time

The conduct of the parties

Whether the offer was a genuine offer to settle

41
Q

What is a Calderbank offer?

A

This is an offer made by letter written “without prejudice save as to costs”

42
Q

If a Part 36 offer does not comply with the requirements, can it still be permissible?

A

No, it must comply strictly

43
Q

If a Part 36 offer excludes interest, is this allowed?

A

No, it must always include interest

44
Q

If a Part 36 offer by letter was sent on Monday 14th October, what day will it be made?

A

Wednesday 16th October 2024

second business day after

45
Q

If a party has made a Part 36 offer, and then changed the terms by reducing the offer, can the offeree still accept the old offer?

A

Yes, as long as the original offer was not withdrawn

46
Q

If two Part 36 offers have been made, from what date will a party be entitled to costs?

A

From the date of the first Part 36 offer

47
Q

If a Part 36 offer is made by the defendant and refused by the claimant, but the claimant wins less money than the Part 36 offer, are they entitled to any costs?

A

They are entitled to the costs up to the Part 36 offer being made

After the date on which the offer was made, the defendant will be entitled to the costs

48
Q

If a claimant has shown poor conduct, but then accepts a Part 36, can the court disallow costs under CPR 44?

A

No, they can only disallow costs under CPR 36

Part 36 cost consequences are treated as different from Part 44

49
Q

If a claimant is up against two joint defendants, and one defendant makes a Part 36 offer, how does the claimant accept?

A

They must discontinue the claim with the other defendant, and the other defendant must agree in writing

50
Q

Does a Part 36 offer have cost consequences in any appeals as well as the proceedings?

A

No, the offeror must make a new Part 36 offer to rely on the cost consequences

51
Q

Is the approval of the court needed to accept a Part 36 offer which relates to only part of the claim?

A

No, the party may accept the offer and pursue the rest of the claim without the court’s permission

52
Q

Can a Part 36 offer be made with a time limited offer?

A

Yes, the offer can be automatically withdrawn using a time limit term

However, the time limit MUST BE AFTER THE EXPIRY OF THE RELEVANT PERIOD (21 days)

53
Q

If a Part 36 offer is made, but not accepted, and then the offeree wishes to accept it during trial, what must they do?

A

The offeree must obtain Court’s permission to accept once the trial is in progress

54
Q

If a part 36 offer is accepted, can the terms still be changed or withdrawn?

A

Yes, with the permission of the court

55
Q

Why is making Part 36 offers that are automatically withdrawn useful?

A

As it puts pressure on the offeree to accept it

BTC- Civil Litigation (19 decks)

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