Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Civil Litigation > Unit 13 - Part 36 Offers > Flashcards

Unit 13 - Part 36 Offers Flashcards

1
Q

Can parties make offers not in accordance with Part 36?

A

Yes, but it won’t have the consequences specified in Part 36.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Part 36 offers can be made for issues that arise in

A

Claims

Counterclaims

Additional claims

Appeals

Cross appeals

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is a Calderbank offer?

A

A Calderbank offer is made by letter written “without prejudice save as to costs” or “without prejudice” but subject to an express reservation of the right to refer to the letter on the issue of costs should the claim proceed to judgment.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

If there a formal/technical defects to Part 36 offer, can usual consequences flow?

A

If there is no real uncertainty or prejudice to the offeree.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Will fundamental defects preclude an offer being treated as a Part 36 offer?

A

Yes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Do Part 36 offers have consqeuences relating to costs of appeals to those decisions?

A

Only if the offer is made in the appeal proceedings.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Must a Part 36 offer be in writing?

A

Yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Must a Part 36 offer make clear that it is made pursuant to Part 36?

A

Yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Must a Part 36 offer specifiy a period within which D will be liable for C’s costs if offer is accepted?

A

Yes, but the period must not be less than 21 days (unless less than 21 days to start of trial)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Must a Part 36 offer state whether it relates to whole claim, or part of claim?

A

Yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

A defendant’s offer that includes an offer to pay all/part of the sum at a date later than 13 days following acceptance will NOT be treated as a Part 36 offer unless…

A

…the offeree accepts the offer.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

When can a part 36 offer be made?

A

Any time, including before commencement of proceedings.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

When is a Part 36 offer considered made?

A

When served on the offeree.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Can an offeree request clarifications on the offer?

A

Yes, within 7 days of the offer being made.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

TRUE or FALSE. A Part 36 offer can always be withdrawn/changed at any time.

A

FALSE. Only if offeree has not previously served notice of acceptance.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

How does an offeror withdraw/change terms of offer?

A

By serving written notice of the withdrawal/change of terms on offeree.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Can an offeror withdraw/chane terms without permission of the court?

A

Yes, after the relevant expiry period.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Can an offer be automatically withdrawn, in accordance with its terms?

A

Yes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

If a Part 36 offer is changed to be more favourable to the offeree, is this a withdrawal of the old offer?

A

No, it is a new offer on improved terms.

20
Q

What happens if offeror withdraws offer but offeree has already accepted?

A

The acceptance has effect, unless offeror applies to court for permission to withdraw/change terms within 7 days of acceptance OR before trial, if earlier.

21
Q

When will the court give permission to withdraw an offer post-acceptance?

A

If satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.

22
Q

Generally, what costs is a claimant entitled to in relation to Part 36 offers?

A

Costs of proceedings up to the date upon which noticeo f acceptance was served on offeror.

23
Q

What happens to the claim, once a Pt 36 offer is accepted?

A

Stayed (in relation to parts to which offer relates)

24
Q

When must sums agreed under Part 36 be paid by?

A

14 days of acceptance, unless another period is agreed.

25
Q

Where C wants to accept a Pt 36 offer made by some but not all defendants, when can they accept it?

A

If D sued jointly: If C discontinues claim against D who has not made offer + they consent to acceptance of offer.

If D sued severally, C can accept offer and continue claims against the other Ds.

26
Q

TRUE or FALSE. A Pt 36 offer will be treated as “without prejudice except as to costs”.

A

TRUE.

27
Q

Can the acceptance/terms of Pt 36 offer be communicated to trial judge?

A

Not until case has been decided, unless:

(a) where the defence of tender before claim has been raised;
(b) where the proceedings have been stayed under rule 36.14 following acceptance of a Part 36 offer;
(c) where the offeror and the offeree agree in writing that it should not apply; or
(d) where, although the case has not been decided—

(i) any part of, or issue in, the case has been decided; and
(ii) the Part 36 offer relates only to parts or issues that have been decided.

28
Q

When does rule 36.17 apply?

A

Where C fails to obtain a judgment more advantageous than D’s Pt 36 offer; or

Judgment against D is at least as advantageous to C as the proposals in C’s Pt 36 offer.

29
Q

When 36.17 applies, the court must (unless unjust) order that D is entitled to:

A

(a) costs (including any recoverable pre-action costs) from the date on which the relevant period expired; and
(b) interest on those costs.

30
Q

Where 36.17 applies, the court must (unless unjust) order that C is eneitled to:

A

(a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
(b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;
(c) interest on those costs at a rate not exceeding 10% above base rate; and

(d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is—
(i) the sum awarded to the claimant by the court; or
(ii) where there is no monetary award, the sum awarded to the claimant by the court in respect of costs—

31
Q

What must a consider consider when deciding if it is unjust to make an order under 36.17?

A

(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made;
(d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and
(e) whether the offer was a genuine attempt to settle the proceedings.

32
Q

True or false. A letter containing a Part 36 offer must be parked “without prejudice except as to costs”?

A

False. It must be clear that the letter is making a Part 36 offer, but it is treated as without prejudice.

33
Q

TRUE or FALSE. A Part 36 offer is made when the offer letter is sent to the offeree.

A

False. It is made when served.

34
Q

TRUE or FALSE. A Part 36 offer is accepted ny serving written notice of the acceptance on the offeror.

A

TRUE.

35
Q

TRUE or FALSE. An offeree may, within 7 days of a Part 36 offer being made, request the offeror to clarify the offer.

A

TRUE.

36
Q

TRUE or FALSE. If a Part 36 Offer is accepted, the claim will be stayed.

A

TRUE.

37
Q

What is the time frame for replying to a question about a Part 36 offer?

What happens if there is no response.

A

7 days

You can apply for an answer to be ordered.

38
Q

If the claimant makes a Part 36 offer, D rejects, and then C is awarded a GREATER sum at trial, what are the likely consequences?

A

(i) interest at 10% per annum above base rate on the whole or part of the £60,000 the Claimant has been awarded for some or all of the period starting with the date on which the relevant period expired and
(ii) the Claimant’s costs on the indemnity basis from the date on which the relevant period expired and
(iii) interest on those costs at a rate not exceeding 10% above base rate and
(iv) an additional amount of 10% of the amount of £60,000 awarded, that is £6,000.

39
Q

What happens if C makes a Part 36 offer, D rejects, and then C is awarded a LESSER sum at trial?

A

The court will order D to pay C’s costs on the standard basis. CPR 44.2(2)(a) applies.

40
Q

What happens if C makes a Part 36 offer, D rejects, D makes a lower offer which C rejects, and then C wins but is awarded a sum lower than both amounts?

A

D must pay C’s costs on the standard basis up until the last day of the relevant period.

C must then pay D’s costs on the standard basis from the date that the relevant period expired, AS WELL AS interests on those costs.

41
Q

How is the relevant period calculated for CPR Part 36?

A

If the offer is made not less than 21 days before trial, the period is not less than 21 days, unless parties agree longer.

If the offer is made less than 21 days before trial, the relevant period is the period up to the end of the trial.

42
Q

If a Part 36 offer if rejected, is it automatically withdrawn?

A

No.

43
Q

Are joint settlement meetings held without prejudice?

A

Yes, except for costs.

44
Q

What are the formalities for Part 36 offers under CPR 36.5(1)?

A

A Part 36 offer must—

(a) be in writing;
(b) make clear that it is made pursuant to Part 36;
(c) specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with rule 36.13 or 36.20 if the offer is accepted;
(d) 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; and
(e) state whether it takes into account any counterclaim

45
Q

When might the court consider it unjust to make an order under CPR 36.17?

A

An example, where C has a legitimate need to have a public trial (reputation / clear name).

46
Q

If the relevant period expires at the end of a trial, when it is a notice of Part 36 withdrawal to take effect?

A

On whatever date judgment is handed down.

Civil Litigation (19 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions