W8 MCQ (Settlement & Discontinuance) Flashcards
Under Part 36, in the absence of agreement in writing, how long does a defendant have to pay the offered sum of money to claimant if it accepts the offer?
A. 21 days
B. 14 days
C. Unless the offer states the period, there has been no effective offer.
D. 28 days
E. 7 days
B. 14 days
Manchester Hospitals NHS Trust has recently instructed you in respect of proceedings, issued against it by Herbert, for damages for clinical negligence. On Friday last week, Manchester Hospitals NHS Trust served its defence within the correct time limits. The claim is likely to be allocated to the multi-track. Manchester Hospitals NHS Trust wants to make a Part 36 offer but wants it to be a time limited offer ie only open for acceptance for a specified period of time. It asks you for advice on whether it is possible to make a time limited Part 36 offer.
What ONE of the following is the BEST advice in these specific circumstances?
A. No it is not possible to make a time limited offer. You would have to withdraw the offer by serving notice of withdrawal.
B. Yes it is possible to make a time limited offer. The offer can be automatically withdrawn in accordance with its terms. There can be a term which time limits the Part 36 offer. This time limit can be of any period including less than the relevant period.
C. No it is not possible to make a time limited offer. Once a Part 36 offer is made it cannot be withdrawn under any circumstances.
D. Yes it is possible to make a time limited offer. The offer can be automatically withdrawn in accordance with its terms, at the end of a specified period of time. However, the time limit must be after the expiry of the relevant period.
D. Yes it is possible to make a time limited offer. The offer can be automatically withdrawn in accordance with its terms, at the end of a specified period of time. However, the time limit must be after the expiry of the relevant period.
Practically, this means that the Part 36 offer will state that it will be withdrawn by a set date or time, after the expiry of the relevant period, if it has not been accepted.
Clinton Hart is bringing a claim for personal injury against Simon Malik. The claim arises out of a road traffic accident.
The case is issued in the High Court. Simon has admitted liability; the only matter in issue is the amount of damages. The case has been provisionally allocated to the multi-track and Directions Questionnaires are due to be filed next week. Clinton alleges that he has suffered permanent injuries, he cannot work, has mobility issues and needs a significant amount of care. Clinton’s medical evidence supports this and on full valuation the claim would be worth in the region of £1 million. Simon has made a Part 36 offer of £750,000. The relevant period is 21 days. This offer reflects Simon’s solicitor’s valuation of the claim as they feel that the care element of the claim is overvalued. The Part 36 offer was made 10 days ago and has not yet been accepted. Today, instructing solicitors have received an e-mail with an attachment. The attachment is a recording of Clinton playing football for his local football team during which he scores a goal with an overhead kick. There is no evidence of any injury. The sender is willing to provide a witness statement in support.
Advise the solicitors for Simon on the BEST course of action to adopt in relation to his Part 36 offer in light of the new evidence from the following options:
A. Simon should immediately serve a notice of withdrawal. It would then be for Clinton to decide whether or not to serve notice of acceptance. If Clinton did serve notice of acceptance Simon should apply to the court for permission to withdraw the offer within 7 days of Clinton’s notice of acceptance. Simon would argue that the court should grant permission as there has been a change in circumstances since the original offer and it is in the interests of justice.
B. All Simon needs to do is serve a notice of withdrawal and it will take effect immediately.
C. Simon should do nothing.
D. As the relevant period has not expired, Simon’s Part 36 offer can only be withdrawn with the permission of the court. Therefore, Simon should apply immediately to the court for permission to withdraw the offer
A. Simon should immediately serve a notice of withdrawal. It would then be for Clinton to decide whether or not to serve notice of acceptance. If Clinton did serve notice of acceptance Simon should apply to the court for permission to withdraw the offer within 7 days of Clinton’s notice of acceptance. Simon would argue that the court should grant permission as there has been a change in circumstances since the original offer and it is in the interests of justice.
Simon’s Part 36 offer of £750,000 is now very likely to be too high as the injury is worth less than the Part 36 offer (in the light of the evidence in the recording and Clinton playing football for his local football team during which he scores a goal with an overhead kick). As soon as Simon serves the recording evidence (or realises that Simon has it) Clinton may very well accept the offer. In order to prevent acceptance Simon needs IMMEDIATELY to serve a notice to withdraw the offer. Clinton then has a choice whether to accept the offer or allow the withdrawal to take effect. If Clinton does not accept the offer at that stage the offer will be withdrawn at the expiry of the relevant period. If Clinton does accept the Part 36 offer then Simon will need to apply to the court to withdraw the offer within 7 days of Clinton’s notice of acceptance (CPR 36.10).
Landsdown Limited (‘Landsdown’) is the claimant in a civil dispute. Gothic Limited (‘Gothic’) is the defendant. A trial is due to take place in 3 months’ time. The claim is for £500,000. Gothic has made an offer to Landsdown to settle the claim for £350,000. The offer was made pursuant to Part 36 of the CPR. Landsdown has rejected the offer.
The claim proceeds to trial. At trial, Landsdown is awarded £380,000. What is the impact of Gothic’s offer on costs?
A. No effect. Landsdown will get its damages and it will also most likely get its costs paid by Gothic pursuant to the normal rules on costs (CPR 44.2).
B. Landsdown will get its damages and a split costs order. Gothic will have to pay Landsdown’s costs until the relevant period expired. Thereafter, Landsdown will have to pay Gothic’s costs plus interest.
C. Landsdown will get its damages and a split costs order. Landsdown will have to pay Gothic’s costs until the relevant period expired. Thereafter, Gothic will have to pay Landsdown’s costs plus interest.
D. Gothic will most likely get its costs paid by Landsdown pursuant to the normal rules on costs (CPR 44.2).
A. No effect. Landsdown will get its damages and it will also most likely get its costs paid by Gothic pursuant to the normal rules on costs (CPR 44.2).
The claimant (Landsdown) has won. Importantly, Landsdown has obtained more than the offer of £350,000 (it has been awarded £380,000). In other words it obtained a judgment ‘more advantageous’ than the defendant’s (Gothic’s) Part 36 offer. A split costs order would only be appropriate if Landsdown had won, but failed to obtain a more advantageous judgment than Gothic’s Part 36 offer eg if Landsdown had been awarded £340,000.
Where judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer, which of the following IS NOT one of the stipulated consequences (the consequences apply unless the court considers it unjust).
A. C is awarded interest on the award at a rate not exceeding 10% above base rate for some or all of the period from the expiry of the relevant period.
B. C is awarded interest on costs from the end of the relevant period at a rate not exceeding 10% above base rate.
C. All the other answers are consequences.
D. C is awarded an additional amount based on a percentage of the award.
E. C is awarded costs from the end of the relevant period to be assessed on the indemnity basis (in contrast to the usual basis - the standard basis)
C. All the other answers are consequences.
C has brought a breach of contract claim against D seeking damages of £140,000. 4 months before trial, D makes a Part 36 offer of £110,000. C does not accept this. At trial, C is awarded damages of £100,000. What is the likely impact of the Part 36 offer, if any?
A. C will get its damages and a split costs order. D will have to pay C’s costs until the expiry of the relevant period. Thereafter, C will have to pay D’s costs plus interest.
B. D will most likely get its costs paid by C pursuant to the normal rules on costs (CPR 44.2).
C. C will get its damages and a split costs order. C will have to pay D’s costs until the relevant period expires. Thereafter, D will have to pay C’s costs plus interest.
D. No effect. C will get its damages and it will also most likely get its costs paid by D pursuant to the normal rules on costs (CPR 44.2).
A. C will get its damages and a split costs order. D will have to pay C’s costs until the expiry of the relevant period. Thereafter, C will have to pay D’s costs plus interest.
A split costs order is appropriate because C has won, but failed to obtain a more advantageous judgment than D’s Part 36 offer. The costs are therefore ‘split’ as set out in this answer, and D is also awarded interest on those costs. Note, this is the result, unless the court considers it unjust.
Who can discontinue proceedings?
A. Either the claimant or the defendant.
B. The defendant
C. The claimant
C. The claimant
Discontinuance is available to a claimant, and only a claimant.
A claimant discontinues proceedings against Defendant A but not against Defendant B. What are the costs consequences (unless the court orders otherwise)?
A. The claimant will be required to pay the costs of Defendant A and Defendant B up to discontinuance.
B. The claimant will be required to pay the costs of Defendant A up to discontinuance, but not those of Defendant B.
C. The court will determine liability for costs upon the determination of the claim against Defendant B.
D. The court will determine liability for costs upon the discontinuance.
B. The claimant will be required to pay the costs of Defendant A up to discontinuance, but not those of Defendant B.
The claimant is liable for costs relating only to the part of the proceedings which they are discontinuing (CPR 38.6).
Discontinuance is usually achieved by….
A. Filing a notice at court.
B. Filing a notice at court and serving it on all other parties.
C. Filing a consent order.
D. Making an application to court.
B. Filing a notice at court and serving it on all other parties.
When does discontinuance take effect?
A. Upon the court order discontinuing the claim.
B. Upon service of the notice of discontinuance
C. Upon filing of the notice of discontinuance.
D. Upon payment by the claimant of the defendant’s costs.
B. Upon service of the notice of discontinuance
A claimant is bringing a civil action against a defendant for £400,000. After exchange of witness evidence, the defendant serves on the claimant a Part 36 offer to settle in the sum of £300,000. The claimant rejects this offer and the case proceeds to trial where the claimant is awarded £300,000 (all figures are inclusive of interest). Which ONE of the following statements best describes the likely costs consequences?
A. The claimant will get its costs pursuant to the general rule because it has been successful at trial.
B. The claimant will pay the defendant’s costs before the expiry of the relevant period, and the defendant will pay the claimant’s costs from the expiry of the relevant period, pursuant to CPR Part 36, because the claimant beat the defendant’s offer.
C. There are no part 36 costs consequences, because the claimant rejected the defendant’s offer within the relevant period.
D. The claimant will have to pay the defendant’s costs of the proceedings pursuant to the general rule because the claimant has refused a reasonable offer.
E. The defendant will pay the claimant’s costs before the expiry of the relevant period, and the claimant will pay the defendant’s costs from the expiry of the relevant period, pursuant to CPR Part 36, because the claimant failed to beat the defendant’s offer.
E. The defendant will pay the claimant’s costs before the expiry of the relevant period, and the claimant will pay the defendant’s costs from the expiry of the relevant period, pursuant to CPR Part 36, because the claimant failed to beat the defendant’s offer.
This is a Defendant’s part 36 offer. The claimant has failed to obtain judgment more advantageous than the offer (CPR 36.17(1)(a)) as it has obtained a judgment the same as the offer. This triggers Part 36 and it is likely that a split costs order (CPR 36.17(3)) may apply where the claimant will get its costs from the defendant up to the date on which the relevant period expires and the defendant will get its costs from the claimant thereafter. Note, however, that this outcome is not guaranteed – the court will not impose these Part 36 consequences if it considers them to be unjust.
You represent a claimant company which is bringing an action alleging negligence against its former surveyors, the defendant. The defendant makes an offer pursuant to Part 36 in an attempt to settle the action before the issue of proceedings. The next day, the claimant issues proceedings, but shortly afterwards decides it should accept the defendant’s offer.
Which one of the following is the best advice to the claimant should it wish to accept the defendant’s offer?
A. The claimant may accept the offer within the relevant period and obtain damages and costs to the date the notice of acceptance is served.
B. The claimant must accept the offer within the relevant period or else the offer will automatically be withdrawn at the end of that relevant period.
C. The claimant may accept the offer within the relevant period, but as the offer was made before proceedings were issued, Part 36 will not apply.
D. Provided that the claimant accepts the offer within the relevant period, it will be entitled to damages and all of its costs up to the expiry of the relevant period.
E. The claimant can accept the offer by filing a written notice of acceptance at court
A. The claimant may accept the offer within the relevant period and obtain damages and costs to the date the notice of acceptance is served.
A Part 36 offer may be made at any time, including before the commencement of proceedings (CPR 36.7). Pre-issue Part 36 offers have the usual Part 36 consequences, including recoverable pre-action costs, upon acceptance after issue of proceedings (or upon judgment being given).
The Claimant issues proceedings against Company A and Company B for breach of contract. Company A and Company B instruct their own solicitors and serve separate defences. Company A and Company B had worked together in a joint venture partnership and initially appeared equally liable for the breach of contract. On receipt of Company B’s defence, it becomes clear to the Claimant that there was no joint venture agreement and on re-assessing the documentary evidence, the Claimant only has a contract with Company A. What is the best course of action for the Claimant to take?
A. Discontinue the claim against Company A and company B and issue new proceedings against Company A
B. Apply to strike out the particulars of claim against Company B
C. Discontinue the claim against Company B
D. Apply for summary judgment against Company A
E. Apply for a stay of proceedings
C. Discontinue the claim against Company B
The Claimant can discontinue its claim against Company B by filing a notice of discontinuance at court and serving a copy of it on every other party to the proceedings (CPR 38.3(1)). Where there is more than one defendant, the notice of discontinuance must specify against which Defendant(s) the claim is discontinued (CPR 38.3(4)). The Claimant is likely to be required to pay Company B’s costs, but better to face that now than after losing against Company B at trial. In terms of the other answers, discontinuing against Company A and Company B and issuing new proceedings against Company A is going to be much more costly, and could be an abuse of process. A stay of proceedings would not solve the problem, nor are there grounds for summary judgment. The Claimant would not apply to strike out its own statement of case.
