One new question in relation to legal costs and legal aid. Everyone has the right to legal representation. However, the threshold for legal aid in a civil action is low (gross income has to be less than £2,600 per month) regardless of outgoings. If the Defendant is divorced and paying maintenance for four children plus providing housing for his young children who are in the custody of his ex-wife, and he is also required to pay his own living and travel expenses then, after tax, there is no disposable income left. The Defendant has depleted all of his savings. How is it possible for the Defendant to be represented? Legal aid is not available. The Defendant is unable to cover High Court legal costs himself. A loan will not be available for such a purpose in the amount that may be required, particularly since a judgement against the Defendant would bankrupt him. What does he do? Surely he is not required to leave his job and to claim job seekers allowance in order to secure legal representation?

If I make a CPR Part 36 offer does then that then open the door for the Claimant to make a counter Part 36 offer which may result in increased pressure being applied to my Defence position because of the risk of Indemnity costs and interest awarded against me if I am unable to beat the Claimants counter offer? Or is it the case that the Claimant may make a Part 36 offer whether or not I initiate the Part 36 process? Thank you once again in anticipation for your invaluable guidance.

Your advice is incredibly helpful. Thank you. I have one final issue to resolve in relation to a Part 36 offer to settle. Let us assume that the Defendant offers to settle in the sum of £1,000 and that settlement is made subject to a number of conditions. One condition may be that the Defendant does not admit liability (the settlement is on a without liability basis). Another condition may be that the Claimant must accept this sum in full and final settlement of all claims in relation to the facts of the matter in all jurisdictions, both against the Defendant and against any third party. My questions are as follows: (1) If the Claimant refuses to accept the offer based not on the quantum but based on the conditionality and then fails to beat the quantum at the hearing can he argue against a Part 36 costs order on the grounds that he found the conditionality unacceptable? (2) Is it likely that the Claimant will make a counter Part 36 offer for the same sum without the conditionality attached (or in the alternative suggest that he would accept the sum but without the conditionality attached) in order to manage this situation and, if so, and the Defendant refuses to accept the Claimant's terms, what would be the implication on a Part 36 costs order should the Claimant subsequently fail to beat the offer? (3) A Part 36 offer is a statutory offer to settle rather than a contractual offer to settle as was previously the case under common law. It is clear that under the common law system an offer to settle with conditions attached resulted in those conditions taking contractual effect between the parties. However, under Part 36 how would the conditionality of an offer be dealt with and subsequently enforced if required? Thank you once again for your guidance

In relation to CPR part 36 I have been doing some Google research. There are some lawyers online that suggest that making a common law offer to settle without prejudice save as to costs is preferable to using the new CPR36 procedure. Of course I would have to ask the Court to exercise its costs discretion in my favour under CPR44.3 if I beat my offer if I take the common law approach. However, I cannot seem to ascertain why some lawyers support this view. What are the advantages and disadvantages both ways? Under CPR44 would I still be entitled to indemnity costs and enhanced interest either way? Your advice and guidance is appreciated. Additionally, in relation to costs upto the date of acceptance of either a Part 36 offer or a common law offer to settle, if the offer states that the Defendant accepts that he contributed to 10% of the claimed loss but that the other 90% of the loss was caused by the Claimant, is the Claimant still entitled to 100% of the costs of proceedings upto the date of acceptance of the offer or are costs allocated on a pro-rata basis by virtue of acceptance by the parties of their contribution to the claimed loss?

Is it possible to make a Part 36 Settlement Offer subject to contingencies, i.e. on a without liability basis and subject to a consent order including a term that no further action will be brought by the Claimant or its affiliates at any time against the Defendant or against any third party in relation to the facts set out in its claim?

Dear Steampowered, thank you for your advice. I shall take a look at CPR 25. I am intrigued by your suggestion to engage a barrister directly (I thought that barristers could only be instructed via a solicitor. Have the rules changed? I am also concerned about instructing either a solicitor or a barrister becasuse of the cost implications should I lose the case ... legal costs in addition to damages would bankrupt me. Is it possible to achieve legal representation for a defence on a contingency fee basis based on an assessment by Counsel of the claim and the defence? I had hoped that it may be possible that a legal representative would assess the matter as being very defensible and so take the claim with a view to being paid by way of a costs order if he is successful in defending the claim. Do you know if this is possible and if so, which lawyers offer such a service? Jean Paul

AndyThe Claimant has not been dissolved. The entity still exists, but is is essentially a dormant company: nothing more than an empty shell.Jean Paul

A claim is being brought against me by a subsidiary of a large corporate group. The Claimant, a corporate entity with limited liability, ceased doing business 4 years ago, it has no assets and has no bank accounts (it has no capital to put in a bank account and neither does it have any cash flow since it is no longer doing business). The legal action of the Claimant is being funded by the parent of the group and/or another part of the group. My concern is that if judgement is given in my favour and the Court orders that the Claimant pay my legal costs then I will be unable to enforce that order against an insolvent Claimant. Moreover, I would not be able to enforce that costs order against the entity funding the Claimant's litigation since that entity is not a party to the Claim. It is clear that this corporate group is shielding itself behind the veil of corporate limited liability of its defunct subsidiary. Proceedings have been issued, the first CMC has been held and we are awaiting further directions from the Court together with a date for the hearing. So far I have been representing myself, fearful that any legal costs that I incur will not be capable of being recovered against the Claimant. However, I need legal representation but I am mindful that my legal costs may amount to hundreds of thousands of pounds in the High Court and you will understand that I do not want to commit to such costs if I have no prospect of recovering them in future. What action can I take to protect myself? Can the Court order the Claimant to identify the party funding its action and order the Claimant to post money with it to cover a costs order against it should its action fail? If I ask for such an order against the Claimant then is it likely that the Court would order me to make such a deposit with the Court should a costs order be made against me? Please advise me in relation to how I should deal with this situation.