W8 Flashcards
What is the purpose of serving notice of withdrawal or change during the relevant period?
Serving notice of withdrawal or change during the relevant period allows the offeror to either allow the acceptance or apply to the court for permission to withdraw the offer or change its terms.
What is Part 36 and what does it describe?
Part 36 is a self-contained procedural code that describes a kind of offer, sets out consequences if an offer of that kind is made and accepted, and sets out different consequences if any offer of that kind is made and not accepted and the matter proceeds to trial.
What is the purpose of interest on costs in a legal case?
Interest on costs is meant to compensate the party for the time value of money and any financial losses incurred due to the delay in receiving the costs awarded.
What is the purpose of a Part 36 offer in a legal case?
A Part 36 offer is made by any party involved in a legal dispute. If accepted within the relevant period, the defendant will pay the claimant’s costs. If accepted after the relevant period, the usual rule is that the offeree pays the offeror’s costs after the expiry of the relevant period.
What is the aim of Part 36?
If an offer is accepted despite a notice of withdrawal or change being served, the offeror can either allow the acceptance or apply to the court for permission to withdraw the offer or change its terms.
How is the rate of interest on costs determined?
The rate of interest on costs is typically set at a rate not exceeding 10% above the base rate. However, this rate may be higher than the usual rate.
What is a Part 36 offer and can it be time-limited?
A Part 36 offer is a type of offer made in legal proceedings. It is possible to make a time-limited Part 36 offer, which means that the offer is only open for acceptance for a specified period of time.
What are the consequences of accepting a Part 36 offer in a legal case?
o Stay - The claim will be stayed and will not continue to trial – CPR 36.14(1)).
o Settlement sum - For any Part 36 offer which is, or includes, an offer to pay / accept a single sum of money, the defendant has 14 days from acceptance to pay the settlement amount agreed unless otherwise agreed in writing (36.14(6)), failing which the claimant can enter judgment against the defendant (CPR 36.14(7)).
o If the Part 36 offer does not include an offer to pay / accept a single sum of money, then in the event that a party fails to comply with whatever was agreed, the aggrieved party can apply to court to enforce the terms of the offer without the need to start separate court proceedings (CPR 36.14(8)).
How do Part 36 offers differ from Calderbank offers?
Part 36 offers are a specific type of offer governed by Part 36 of the Civil Procedure Rules. Calderbank offers, on the other hand, do not need to comply with Part 36 and have more flexibility in their drafting. However, the court will consider Calderbank offers when exercising its discretion on costs.
Is it possible to withdraw a Part 36 offer once it is made?
- A Part 36 offer cannot be withdrawn after it is accepted, and there are limits on withdrawing it within the relevant period.
What are the consequences of accepting a Part 36 offer?
The consequences of accepting a Part 36 offer depend on whether it is accepted before or after the expiry of the relevant period. If accepted before the expiry, the claimant is entitled to its costs of the proceedings up to the date the notice of acceptance was served on the offeror. If accepted after the expiry, the court will determine liability for costs, with the claimant being awarded costs up to the date the relevant period expired and the offeree being liable for the offeror’s costs from the date of expiry to the date of acceptance.
How can a time-limited Part 36 offer be withdrawn?
If a Part 36 offer is time-limited, it can be automatically withdrawn in accordance with its terms, at the end of a specified period of time.
What is the likely impact of a Part 36 offer if a claimant does not accept it?
- -If the claimant fails to beat a defendant’s offer, the penalty is the claimant being ordered to pay the defendant’s costs from the date the relevant period expired, and interest on those costs.
o D’s Part 36 offer only ‘bites’ if C wins the same or less than D’s offer
What is the likely impact of a Part 36 offer if D does not accept it?
- If the claimant does the same or better than its own offer, the penalty is the defendant being ordered to pay enhanced interest, indemnity costs and interests on those costs from the date the relevant period expired, plus a lump sum.
The Claimant’s Part 36 offer only ‘bites’ if the Claimant wins and receives the same or more than its offer.
Under what circumstances does a claimant’s Part 36 offer have no effect?
If the ‘trigger’ is not met, such as when the claimant does worse at trial than it offered to accept, then the claimant’s Part 36 offer has no effect.
How should a Part 36 offer be accepted?
o Serve written notice of acceptance on the offeror (CPR 36.11(1)).
o If the case is issued the acceptance also needs to be filed at court.
o There is no prescribed form for this - a letter will be sufficient.
Important: An offer remains open for acceptance unless it has been withdrawn (CPR 36.11(2)). This remains the case even after the relevant period has expired, unless offer is expressed to be withdrawn automatically at the end of the relevant period.
Can a time-limited Part 36 offer have a time limit that is less than the relevant period?
Yes, a time-limited Part 36 offer can have a time limit that is less than the relevant period.
What is the likely impact of a Part 36 offer if a claimant accepts it?
If a claimant accepts a Part 36 offer, they will get their damages and a split costs order. This means that the defendant will have to pay the claimant’s costs until the relevant period expires, and thereafter, the claimant will have to pay the defendant’s costs plus interest.
What happens if an offer remains open for acceptance after the relevant period has expired?
If an offer remains open for acceptance after the relevant period has expired, it can still be accepted unless it is expressed to be withdrawn automatically at the end of the relevant period.
What are the requirements for a valid Part 36 offer?
ANSWER
A Part 36 offer must be marked as such, be in writing, state whether it applies to the whole or part of the claim or any counterclaim, and specify a period of at least 21 days when the defendant will be liable for the claimant’s costs if accepted. These rules apply to both claimants’ and defendants’ offers.
When can a Part 36 offer be made?
Part 36 offers can be made at any stage of proceedings, including before proceedings are issued. They can be made by either party and must conform to certain formalities to be considered valid.
What is the purpose of mediation in alternative dispute resolution (ADR)?
Mediation is a confidential process intended to facilitate the resolution of disputes through the medium of an impartial third party, known as the mediator. The mediator helps the parties reach a compromise or agreement to the satisfaction of both parties. The mediator does not have the authority to make any decision that is binding on the parties.
What is the role of an independent party in early neutral evaluation (ENE)?
In early neutral evaluation, an independent party is appointed by the parties involved in a dispute. The independent party provides a non-binding assessment of the matter referred to them. The assessment provides an impartial ‘opinion’ which might influence the parties in future decisions. The parties will have to pay the independent party for their time and costs.
What factors does the court consider when deciding what is unjust in relation to Part 36 offers?
When deciding what is unjust, the court will take into account the terms of any Part 36 offer, the stage in the proceedings when the offer was made, the information available to the parties, the conduct of the parties in relation to giving/refusing information for the purpose of enabling the offer to be made/evaluated, and whether the offer was a genuine attempt to settle.
What happens if an offeree accepts a Part 36 offer made less than 21 days before trial?
If an offeree accepts a Part 36 offer made less than 21 days before trial, the court must determine liability for costs unless the parties agree on them. The court must order that the claimant be awarded costs up to the date the relevant period expired and that the offeree pay the offeror’s costs for the period from the date of expiry to the date of acceptance, unless it considers it unjust to do so.