Part 36 offers**W

[pt2537]

Okay you guys, now we have it thanks to my dear friend in the Cabot Fan Club - what a crowd they are... That's what makes CAG so damned good, we pull things to pieces piece by piece till we get there... I have been trying to get to the bottom of how far I can go with this Part 36, It's a Without Prejudice save as to costs issue and I'm no lawyer, but with all you guys and gals pulling together, PT, Steven, Elizabeth, x20 and the rest of the forum chipping in all over the place we come up with the holy grail I was looking for..:

 

Can I can't I talk about this in court ? - Tormented me all day until just now..what a team: Straight out of a solicitors website http://www.bateswells.co.uk/Files/Publications/guide_to_prejudice.pdf comes this little gem...

 

" Without prejudice communications can be in the

form of letters, emails, telephone discussions and

meetings. They can be brought to the Court’s

attention to explain delay and, where an offer

made in a without prejudice communication has

been accepted by the other party to the dispute,

the act of acceptance can create a legally binding

contract, upon which the trail of without prejudice

communications becomes “open” and can be

entered as evidence to enforce a party’s rights"

 

Never one to count my chickens, but this is making me feel all gooeey

 

Thank you all so much everyone, I just hope I can come back tomorrow with a positive answer - don't hold your breath - this is a county court Judge and I have to be patient...

not wanting to tempt fate but if the judge is mad as a hatter, dont forget to ask for permission to appeal if things go bonkers, not that it will but you know what county court judges are like

 

Let us know how you get on , thats if you dont get gagged of course

[Goldlady]

" Without prejudice communications can be in the

form of letters, emails, telephone discussions and

meetings. They can be brought to the Court’s

attention to explain delay and, where an offer

made in a without prejudice communication has

been accepted by the other party to the dispute,

the act of acceptance can create a legally binding

contract, upon which the trail of without prejudice

communications becomes “open” and can be

entered as evidence to enforce a party’s rights"

 

 

Excellent - the very best of luck for tomorrow. Have everything crossed for you;)

[andrew1]

This is just me doing overtime on what if's, but....

 

Once this Part 36 Offer was accepted, this above statement "the act of acceptance can create a legally binding contract", should hold fast one would hope.

 

Now, just suppose pt is right and I have a difficult Judge at this case management hearing, given the solicitors have now proposed a strike out on the basis that my original defence was ' misconceived' according to their newly appointed barrister and he were to be hypertheticlly correct, what happens to the legally binding contract? Suppose I am totally wrong and they have just caught on 10 months after we started negotiating, I've already accepted their Offer and now they want to save the day by going back on their Offer which I have accepted - what could happen?

[Goldlady]

Stable doors and bolting horses come to mind. Try and get some sleep. If they had enough faith in your case to make a part 36 offer I don't see how they can back out of that even if their new barrister has found that they made a mistake. Too late I think.

[andrew1]

Stable doors and bolting horses come to mind. Try and get some sleep. If they had enough faith in your case to make a part 36 offer I don't see how they can back out of that even if their new barrister has found that they made a mistake. Too late I think.

 

You're right...good night young lady..

[mcuth]

This is just me doing overtime on what if's, but....

 

Once this Part 36 Offer was accepted, this above statement "the act of acceptance can create a legally binding contract", should hold fast one would hope.

 

Now, just suppose pt is right and I have a difficult Judge at this case management hearing, given the solicitors have now proposed a strike out on the basis that my original defence was ' misconceived' according to their newly appointed barrister and he were to be hypertheticlly correct, what happens to the legally binding contract? Suppose I am totally wrong and they have just caught on 10 months after we started negotiating, I've already accepted their Offer and now they want to save the day by going back on their Offer which I have accepted - what could happen?

 

A legally binding contract is a legally binding contract is a legally binding contract.... Any judge in their right mind will see you've accepted an offer and the other side have tried to change the terms of it - though I'd still try and get this in right at the start of the CMC (before t'other side obfuscates the judge)

 

Good luck today matey - looking forward to seeing your update later...

 

Cheers

Michael

[pt2537]

Good Luck Andrew,

 

Fingers are well and truly crossed for you

[andrew1]

Yes or No?

 

Do you think the Judge would allow a Strike out and repossession within 28 days which has been presented 2 months after a Part 36 Offer has been made and already accepted despite the Tomlin not being agreed which came 7 wks later?

 

Off in 10 mins....

[mcuth]

Yes or No?

 

Do you think the Judge would allow a Strike out and repossession within 28 days which has been presented 2 months after a Part 36 Offer has been made and already accepted despite the Tomlin not being agreed which came 7 wks later?

 

The sensible & proper decision is NO

 

Off in 10 mins....

 

All the best mate!

 

Cheers

Michael

[supasnooper]

Sorry I can't offer any advice.

 

Good luck and hope you do well.

[pt2537]

NOPE thats my thoughts

[andrew1]

Still in one piece, but not over yet, now need to prove the Part 36 offer was accepted and go to another hearing in Feb. I'm not going to post much further as it's all in the bargaining and quite sensitive. So I'll report back occasionally. Just got back so will come back later anyway.

 

Thank you guys and gals for your support.

[steven4064]

Well done so far Sarah

[mcuth]

Still in one piece, but not over yet, now need to prove the Part 36 offer was accepted and go to another hearing in Feb. I'm not going to post much further as it's all in the bargaining and quite sensitive. So I'll report back occasionally.

 

Interesting stuff - can't wait to hear more

 

Cheers

Michael

[andrew1]

All I can say here just now is it went okay, chipping away, but the Judge needs concrete proof the P36 Offer was officially accepted so I am now going to gather every bit of evidence I can from whatever source, good or bad, to prove my point. He was a fair Judge and I was against a good Consumer Credit Barrister - I have another hearing in February and I now will retreat from this thread for a while digging, researching and clarifying every last turn, nook and cranny.

 

When x20 comes back I would appreciate a little guidance on his knowledge of the Part 36 procedure, not just the mechanisms, but the effect of Offer and Acceptance in accordance with the Offer, whether written confirmation is actually caste in stone legally and if not how it may be presented, contract law in relation to forming a legally binding contract in these circumstances and anything else I can muster from all of your knowledge out there to prove that the Part 36 Offer which was supplied in written format as quoted above, accepted within the prescribed period by telephone, confirmed as being accepted in writing by the solicitors " We refer to our telephone conversation on 10th October 2008 during which you stated that you accepted our clients Part 36 Offer" and then goes on to state "Pursuant to Part 36 9(1) a part 36 Offer is accepted by serving written notice of acceptance on the offeror" This letter is dated 2nd December and they sent me the Tomlin Order with all the terms 7 weeks after the Part 36 and over 2 weeks after the deadline for accepting so I couldn't have seen these different terms within the prescribed period anyway.

 

The case I now have is to convince the Judge that the Acceptance was bone fide and legally binding under the law - get that - the case is mine, lose that - move on to full hearing and application to Strike out my original defence.....lets get em.

 

I have some research work to do myself behind the scenes too in my usual way, but any input would be greatly appreciated. I want this nailed.

[pt2537]

 

 

807A. Offers to settle.

 

1. Offers to settle: in general

Part 36 of the Civil Procedure Rules contains rules about offers to settle1 and the consequences where an offer to settle is made in accordance with Part 362. Nothing in Part 36 prevents a party making an offer to settle in whatever way he chooses, but if the offer is not made in accordance with the specified rule2, it will not have the specified consequences3.

A Part 36 offer may be made at any time, including before the commencement of proceedings, and may be made in appeal proceedings4. A Part 36 offer which offers to pay or offers to accept a sum of money will be treated as inclusive of all interest until the date on which the period stated5 expires; or, in the specified circumstances6, a date 21 days after the offer was made7.

A Part 36 offer has the consequences set out in Part 36 only in relation to the costs of the proceedings in respect of which it is made, and not in relation to the costs of any appeal from the final decision in those proceedings8. Before expiry of the relevant period9, a Part 36 offer may be withdrawn or its terms changed to be less advantageous to the offeree10, only if the court gives permission11. After expiry of the relevant period and provided that the offeree has not previously served notice of acceptance, the offeror12 may withdraw the offer or change its terms to be less advantageous to the offeree without the permission of the court13. The offeror does so by serving written notice of the withdrawal or change of terms on the offeree14.

A Part 36 offer is made when it is served on the offeree15. A change in the terms of a Part 36 offer will be effective when notice of the change is served on the offeree16.

 

 

1 An offer to settle which is made in accordance with CPR 36.2 (see para 807A.2 post) is called a Part 36 offer: CPR 36.2(1) (CPR Pt 36 substituted by SI 2006/3435).

2 CPR 36.1(1) (CPR Pt 36 as substituted: see note 1 supra).

3 CPR 36.1(2) (CPR Pt 36 as substituted: see note 1 supra). As to the specified consequences see CPR 36.10 (see para 807A.8 post), CPR 36.11 (see para 807A.9 post) and CPR 36.14 (see para 807A.12 post).

4 CPR 36.3(2) (CPR Pt 36 as substituted: see note 1 supra).

5 Ie under CPR 36.2(2)©: see para 807A.2 head (3) post.

6 Ie if CPR 36.2(3) (see para 807A.2 note 4 post) applies.

7 CPR 36.3(3) (CPR Pt 36 as substituted: see note 1 supra).

8 CPR 36.3(4) (CPR Pt 36 as substituted: see note 1 supra).

9 In CPR Pt 36, 'the relevant period' means (1) in the case of an offer made not less than 21 days before trial, the period stated under CPR 36.2(2)© or such longer period as the parties agree; (2) otherwise, the period up to end of the trial or such other period as the court has determined: CPR 36.3(1)©.

10 In CPR Pt 36, the party to whom an offer is made is the 'offeree': CPR 36.3(1)(b).

11 CPR 36.3(5).

12 In CPR Pt 36, the party who makes an offer is the 'offeror': CPR 36.3(1)(a).

13 CPR 36.3(6) (CPR Pt 36 as substituted: see note 1 supra).

14 CPR 36.3(7) (CPR Pt 36 as substituted: see note 1 supra). As to the costs consequences following judgment of an offer that is withdrawn see CPR 36.14(6); and para 807A.12 post.

15 CPR 36.7(1) (CPR Pt 36 as substituted: see note 1 supra).

16 CPR 36.7(2) (CPR Pt 36 as substituted: see note 1 supra). As to provision about when permission is required to change the terms of an offer to make it less advantageous to the offeree see CPR 36.3 supra.

2. Form and content of a Part 36 offer

An offer to settle which is made in accordance with the provisions below1 is called a Part 36 offer2. A Part 36 offer must

 

 

 

• (1) be in writing;
  
• (2) state on its face that it is intended to have the consequences of Part 36;
  
• (3) specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs3 if the offer is accepted4;
  
• (4) 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
  
• (5) state whether it takes into account any counterclaim5.
  

In appropriate cases, a Part 36 offer must contain certain further information6. An offeror7 may make a Part 36 offer solely in relation to liability8.

 

 

1 Ie CPR 36.2.

2 CPR 36.2(1) (CPR Pt 36 substituted by SI 2006/3435).

3 Ie in accordance with CPR 36.10: see para 807A.8 post.

4 Head (3) does not apply if the offer is made less than 21 days before the start of the trial: CPR 36.2(3) (CPR Pt 36 as substituted: see note 2 supra).

5 CPR 36.2(2) (CPR Pt 36 as substituted: see note 2 supra). As to provision for when a Part 36 offer is made see CPR 36.7; and para 807A.1 ante.

6 CPR 36.2(4) (CPR Pt 36 as substituted: see note 1 supra), which refers to such information as is required by CPR 36.5 (see para 807A.4 post), CPR 36.6 (see para 807A.5 post) and CPR 36.15.

7 As to the meaning of 'offeror' see para 807A.1 note 12 ante.

8 CPR 36.2(5) (CPR Pt 36 as substituted: see note 2 supra).

 

3. Defendants' offers

A Part 36 offer1 by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money2 but, an offer that includes an offer to pay all or part of the sum, if accepted, at a date later than 14 days following the date of acceptance will not be treated as a Part 36 offer unless the offeree3 accepts the offer4.

 

 

1 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

2 CPR 36.4(1) (CPR Pt 36 substituted by SI 2006/3435). This is subject to CPR 36.5(3) (see para 807A.4 post) and CPR 36.6(1) (see para 807A.5 post).

3 As to the meaning of 'offeree' see para 807A.1 note 10 ante.

4 CPR 36.4(2) (CPR Pt 36 as substituted: see note 2 supra).

4. Personal injury claims for future pecuniary loss

In the case of a claim for damages for personal injury which is or includes a claim for future pecuniary loss, an offer to settle such a claim will not have particular costs consequences1 unless it is made by way of a Part 36 offer2 under these provisions3. In such a case, a Part 36 offer may contain an offer to pay, or an offer to accept (1) the whole or part of the damages for future pecuniary loss in the form of (a) a lump sum; or (b) periodical payments; or © both a lump sum and periodical payments; (2) the whole or part of any other damages in the form of a lump sum4.

To the extent that a Part 36 offer by a defendant under these provisions includes an offer to pay all or part of any damages in the form of a lump sum, the offer

 

 

 

• (i) must state the amount of any offer to pay the whole or part of any damages in the form of a lump sum;
  
• (ii) may state
  
• 
  
  • (a) what part of the lump sum, if any, relates to damages for future pecuniary loss; and
    
  • (b) what part relates to other damages to be accepted in the form of a lump sum;
    

   

  [*] (iii) must state what part of the offer relates to damages for future pecuniary loss to be paid or accepted in the form of periodical payments and must specify

  [*]

  • (a) the amount and duration of the periodical payments;
    
  • (b) the amount of any payments for substantial capital purchases and when they are to be made; and
    
  • © that each amount is to vary by reference to the retail prices index (or to some other named index, or that it is not to vary by reference to any index); and
    

   

  [*] (iv) must state either that any damages which take the form of periodical payments will be funded in a way which ensures that the continuity of payment is reasonably secure5 or how such damages are to be paid and how the continuity of their payment is to be secured6.

Where the offeror makes a Part 36 offer to which these provisions apply and which offers to pay or to accept damages in the form of both a lump sum and periodical payments, the offeree may only give notice of acceptance of the offer as a whole7. If the offeree accepts a Part 36 offer which includes payment of any part of the damages in the form of periodical payments, the claimant must, within seven days of the date of acceptance, apply to the court for an order for an award of damages in the form of periodical payments8.

 

 

1 Ie those set out in CPR 36.10 (see para 807A.8 post), CPR 36.11 (see para 807A.9 post) and CPR 36.14 (see para 807A.12 post).

2 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

3 CPR 36.5(1), (2) (CPR Pt 36 substituted by SI 2006/3435).

4 CPR 36.5(3) (CPR Pt 36 as substituted: see note 2 supra).

5 Ie in accordance with the Damages Act 1996 s 2(4): see damages vol 12(1) (Reissue) para 931.

6 CPR 36.5(4), (5) (CPR Pt 36 as substituted: see note 2 supra).

7 CPR 36.5(6) (CPR Pt 36 as substituted: see note 2 supra).

8 CPR 36.5(7) (CPR Pt 36 as substituted: see note 2 supra), referring to CPR 41.8 (see para 1223A post). A practice direction supplementing CPR Pt 41 contains information about periodical payments under the Damages Act 1996: see para 1223A post.

 

5. Offer to settle a claim for provisional damages

An offeror1 may make a Part 36 offer2 in respect of a claim which includes a claim for provisional damages3. Where he does so, the Part 36 offer must specify whether or not the offeror is proposing that the settlement is to include an award of provisional damages4.

Where the offeror is offering to agree to the making of an award of provisional damages the Part 36 offer must also state

 

 

 

• (1) that the sum offered is in satisfaction of the claim for damages on the assumption that the injured person will not develop the disease or suffer the type of deterioration specified in the offer;
  
• (2) that the offer is subject to the condition that the claimant must make any claim for further damages within a limited period; and
  
• (3) what that period is5.
  

If the offeree6 accepts the Part 36 offer, the claimant must, within seven days of the date of acceptance, apply to the court for an order for an award of provisional damages7.

 

 

1 As to the meaning of 'offeror' see para 807A.1 note 12 ante.

2 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

3 CPR 36.6(1) (CPR Pt 36 substituted by SI 2006/3435).

4 CPR 36.6(2) (CPR Pt 36 as substituted: see note 3 supra). CPR 36.4 (see para 807A.3 ante) applies to the extent that a Part 36 offer by a defendant includes an offer to agree to the making of an award of provisional damages: CPR 36.6(4) (CPR Pt 36 as substituted).

5 CPR 36.6(3) (CPR Pt 36 as substituted: see note 3 supra).

6 As to the meaning of 'offeree' see para 807A.1 note 10 ante.

7 CPR 36.6(5) (CPR Pt 36 as substituted: see note 3 supra), referring to CPR 41.2 (see para 1219).

 

6. Clarification of a Part 36 offer

The offeree1 may, within seven days of a Part 36 offer2 being made, request the offeror3 to clarify the offer4. If the offeror does not give the clarification so requested within seven days of receiving the request, the offeree may, unless the trial has started, apply for an order that he does so5. If the court makes such an order, it must specify the date when the Part 36 offer is to be treated as having been made6.

 

 

1 As to the meaning of 'offeree' see para 807A.1 note 10 ante.

2 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

3 As to the meaning of 'offeror' see para 807A.1 note 12 ante.

4 CPR 36.8(1) (CPR Pt 36 substituted by SI 2006/3435).

5 CPR 36.8(2) (CPR Pt 36 as substituted: see note 4 supra). As to provisions about making an application to the court see CPR Pt 23; and para 852 et seq.

6 CPR 36.8(3) (CPR Pt 36 as substituted: see note 4 supra).

 

7. Acceptance of a Part 36 offer

A Part 36 offer is accepted by serving written notice of the acceptance on the offeror

 

Subject to the provision below, a Part 36 offer may be accepted at any time (whether or not the offeree has subsequently made a different offer) unless the offeror serves notice of withdrawal on the offeree

 

The court's permission is required to accept a Part 36 offer in certain circumstances. Where the court gives such permission, unless all the parties have agreed costs, the court will make an order dealing with costs, and may order that certain costs consequences will apply.

 

Unless the parties agree, a Part 36 offer may not be accepted after the end of the trial but before judgment is handed down.

 

 

1 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

2 CPR 36.9(1) (CPR Pt 36 substituted by SI 2006/3435). As to the meaning of 'offeror' see para 807A.1 note 12 ante.

3 Ie CPR 36.9(3).

4 As to the meaning of 'offeree' see para 807A.1 note 10 ante.

5 CPR 36.9(2) (CPR Pt 36 as substituted: see note 2 supra). As to compromise etc by or on behalf of a child or protected party see CPR 21.10; and children and young persons vol 5(4) (2008 Reissue) para 1422.

6 See CPR 36.9(3) (CPR Pt 36 as substituted: see note 2 supra). The court's permission is so required where (1) CPR 36.12(4) (see para 807A.10 post) applies; (2) CPR 36.15(3)(b) (see para 807A.13 head (2) post) applies, the relevant period has expired and further deductible benefits have been paid to the claimant since the date of the offer; (3) an apportionment is required under CPR 41.3A; or (4) the trial has started: CPR 36.9(3) (CPR Pt 36 as substituted). As to offers by some but not all of multiple defendants see CPR 36.12; and para 807A.10 post. As to recoverable benefits and deductible benefits see CPR 36.15; and para 807A.13 post. CPR 41.3A requires an apportionment in proceedings under the Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934.

7 Ie set out in CPR 36.10: see para 807A.10 post.

8 CPR 36.9(4) (CPR Pt 36 as substituted: see note 2 supra).

9 CPR 36.9(5) (CPR Pt 36 as substituted: see note 2 supra).

8. Costs consequences of acceptance of a Part 36 offer

Subject to certain provisions1 set out below, where a Part 36 offer2 is accepted within the relevant period3 the claimant will be entitled to his costs of the proceedings up to the date on which notice of acceptance was served on the offeror4.

Where

 

 

 

• (1) a defendant's Part 36 offer relates to part only of the claim; and
  
• (2) at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim,
  

the claimant will be entitled to his costs of the proceedings up to the date of serving notice of acceptance unless the court orders otherwise5.

Costs under the provisions above will be assessed on the standard basis if the amount of costs is not agreed6.

Where

 

 

 

• (a) a Part 36 offer that was made less than 21 days before the start of trial is accepted; or
  
• (b) a Part 36 offer is accepted after expiry of the relevant period,
  

if the parties do not agree the liability for costs, the court will make an order as to costs7.

Where head (b) above applies, unless the court orders otherwise, the claimant will be entitled to his costs of the proceedings up to the date on which the relevant period expired; and the offeree8 will be liable for the offeror's costs for the period from the date of expiry of the relevant period to the date of acceptance9. The claimant's costs include any costs incurred in dealing with the defendant's counterclaim if the Part 36 offer states that it takes into account the counterclaim10.

 

 

1 Ie subject to CPR 36.10(2) (see text to note 5 infra) and CPR 36.10(4)(a) (see head (a) in the text).

2 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

3 As to the meaning of 'relevant period' see para 807A.1 note 9 ante.

4 CPR 36.10(1) (CPR Pt 36 substituted by SI 2006/3435). As to the meaning of 'offeror' see para 807A.1 note 12 ante.

5 CPR 36.10(2) (CPR Pt 36 as substituted: see note 4 supra).

6 CPR 36.10(3) (CPR Pt 36 as substituted: see note 4 supra). Where the amount of costs is to be assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue; and resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party: CPR 44.4(2).

7 CPR 36.10(4) (CPR Pt 36 as substituted: see note 4 supra).

8 As to the meaning of 'offeree' see para 807A.1 note 10 ante.

9 CPR 36.10(5) (CPR Pt 36 as substituted: see note 4 supra).

10 CPR 36.10(6) (CPR Pt 36 as substituted: see note 4 supra).

9. The effect of acceptance of a Part 36 offer

If a Part 36 offer1 is accepted, the claim will be stayed2. In the case of acceptance of a Part 36 offer which relates to the whole claim the stay will be on the terms of the offer3.

If a Part 36 offer which relates to part only of the claim is accepted

 

 

 

• (1) the claim will be stayed as to that part on the terms of the offer; and
  
• (2) unless the parties have agreed costs, the liability for costs is to be decided by the court4.
  

If the approval of the court is required before a settlement can be binding, any stay which would otherwise arise on the acceptance of a Part 36 offer will take effect only when that approval has been given5. Any stay arising under these provisions will not affect the power of the court (a) to enforce the terms of a Part 36 offer; (b)to deal with any question of costs (including interest on costs) relating to the proceedings6.

Unless the parties agree otherwise in writing, where a Part 36 offer by a defendant that is or that includes an offer to pay a single sum of money is accepted, that sum must be paid to the offeree within 14 days of the date of (i) acceptance; or (ii) the order when the court makes an order7, unless the court orders otherwise8.

If the accepted sum is not paid within 14 days or such other period as has been agreed the offeree may enter judgment for the unpaid sum9. In certain circumstances10, where a Part 36 offer (or part of a Part 36 offer) is accepted; and a party alleges that the other party has not honoured the terms of the offer, that party may apply to enforce the terms of the offer without the need for a new claim11.

 

 

1 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

2 CPR 36.11(1) (CPR Pt 36 substituted by SI 2006/3435). As to the effect of a stay of proceedings see para 278 note 11.

3 CPR 36.11(2) (CPR Pt 36 as substituted: see note 2 supra).

4 CPR 36.11(3) (CPR Pt 36 as substituted: see note 2 supra).

5 CPR 36.11(4) (CPR Pt 36 as substituted: see note 2 supra).

6 CPR 36.11(5) (CPR Pt 36 as substituted: see note 2 supra).

7 Ie under CPR 41.2 (order for an award of provisional damages) or CPR 41.8 (order for an award of periodical payments).

8 CPR 36.11(6) (CPR Pt 36 as substituted: see note 2 supra).

9 CPR 36.11(7) (CPR Pt 36 as substituted: see note 2 supra).

10 Ie where a Pt 36 offer (or part of a Pt 36 offer) is not an offer to which CPR 36.11(6) applies.

11 CPR 36.11(8) (CPR Pt 36 as substituted: see note 2 supra).

 

10. Acceptance of a Part 36 offer made by one or more, but not all, defendants

Where the claimant wishes to accept a Part 36 offer1 made by one or more, but not all, of a number of defendants,

 

 

 

• (1) if the defendants are sued jointly or in the alternative, the claimant may accept the offer if
  
• 
  
  • (a) he discontinues his claim against those defendants who have not made the offer; and
    
  • (b) those defendants give written consent to the acceptance of the offer2;
    

   

  [*] (2) if the claimant alleges that the defendants have a several liability3 to him, the claimant may

  [*]

  • (a) accept the offer; and
    
  • (b) continue with his claims against the other defendants if he is entitled to do so4.
    

   

In all other cases the claimant must apply to the court for an order permitting him to accept the Part 36 offer5.

 

 

1 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

2 CPR 36.12(1), (2) (CPR Pt 36 substituted by SI 2006/3435).

3 As to the meaning of 'several liability' see para 822 note 8.

4 CPR 36.12(1), (3) (CPR Pt 36 as substituted: see note 2 supra).

5 CPR 36.12(4) (CPR Pt 36 as substituted: see note 2 supra).

 

11. Restriction on disclosure of a Part 36 offer

A Part 36 offer1 will be treated as 'without prejudice'2 except as to costs'3.

The fact that a Part 36 offer has been made must not be communicated to the trial judge or to the judge (if any) allocated in advance to conduct the trial until the case has been decided4 but this does not apply

 

 

 

• (1) where the defence of tender before claim5 has been raised;
  
• (2) where the proceedings have been stayed6 following acceptance of a Part 36 offer; or
  
• (3) where the offeror and the offeree agree in writing that it should not apply7.
  

1 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

2 As to the meaning of 'without prejudice' see para 824 note 2.

3 CPR 36.13(1) (CPR Pt 36 substituted by SI 2006/3435).

4 CPR 36.13(2) (CPR Pt 36 substituted: see note 2 supra).

5 As to the meaning of 'defence of tender before claim' see para 667 note 1.

6 Ie under CPR 36.11: see para 807A.9 ante. As to the effect of a stay of proceedings see para 278 note 11.

7 CPR 36.13(3) (CPR Pt 36 substituted: see note 2 supra).

 

12. Costs consequences following judgment

The following provisions apply where on judgment being entered

 

 

 

• (1) a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer1; or
  
• (2) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's Part 36 offer2.
  

Subject to heads (a) to © below, where head (1) above applies, the court will, unless it considers it unjust to do so, order that the defendant is entitled to his costs from the date on which the relevant period3 expired; and interest on those costs4.

Also subject to heads (a) to © where head (2) above applies, the court will, unless it considers it unjust to do so, order that the claimant is entitled to

 

 

 

• (a) interest on the whole or part of any sum of money (excluding interest) awarded at a rate not exceeding 10 per cent above base rate5 for some or all of the period starting with the date on which the relevant period expired;
  
• (b) his costs on the indemnity basis from the date on which the relevant period expired; and
  
• © interest on those costs at a rate not exceeding 10 per cent above base rate6.
  

In considering whether it would be unjust to make the orders referred to above7, the court will take into account all the circumstances of the case including

 

 

 

• (i) the terms of any Part 36 offer;
  
• (ii) 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;
  
• (iii) the information available to the parties at the time when the Part 36 offer was made; and
  
• (iv) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer to be made or evaluated8.
  

Where the court awards interest under these provisions and also awards interest on the same sum and for the same period under any other power, the total rate of interest may not exceed 10 per cent above base rate9.

The provisions above10 do not apply to a Part 36 offer

 

 

 

• (a) that has been withdrawn;
  
• (b) that has been changed so that its terms are less advantageous to the offeree, and the offeree has beaten the less advantageous offer;
  
• © made less than 21 days before trial, unless the court has abridged the relevant period11.
  

1 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

2 CPR 36.14(1) (CPR Pt 36 substituted by SI 2006/3435). As to the power under CPR 36.14(1) to adopt a broad approach and to award costs in favour of the losing party or to make no order for costs, see Carver v BAA plc [2008] EWCA Civ 412, [2008] 3 All ER 911.

3 As to the meaning of 'relevant period' see para 807A.1 note 9 ante.

4 CPR 36.14(2) (CPR Pt 36 as substituted: see note 2 supra).

5 As to the meaning of 'base rate' see para 826 note 5.

6 CPR 36.14(3) (CPR Pt 36 as substituted: see note 2 supra).

7 Ie in CPR 36.14(2) and CPR 36.14(3).

8 CPR 36.14(4) (CPR Pt 36 as substituted: see note 2 supra).

9 CPR 36.14(5) (CPR Pt 36 as substituted: see note 2 supra).

10 Ie CPR 36.14(2) and CPR 36.14(3).

11 CPR 36.14(6) (CPR Pt 36 as substituted: see note 2 supra). As to the requirement that the court consider an offer to settle that does not have the costs consequences set out in CPR Pt 36 in deciding what order to make about costs see CPR 44.3; and costs vol 10 (Reissue) paras 16–18.

 

13. Deduction of benefits

The following provisions apply where a payment to a claimant following acceptance of a Part 36 offer1 would be a compensation payment2.

A defendant who makes a Part 36 offer should state either

 

 

 

• (1) that the offer is made without regard to any liability for recoverable benefits3; or
  
• (2) that it is intended to include any deductible benefits4.
  

Where head (2) above applies, the following provisions will apply to the Part 36 offer5.

Before making the Part 36 offer, the offeror6 must apply for a certificate of recoverable benefits7. The Part 36 offer must state

 

 

 

• (a) the amount of gross compensation;
  
• (b) the name and amount of any deductible benefit by which that gross amount is reduced; and
  
• © the net amount after deduction of the amount of benefit8.
  

If at the time he makes the Part 36 offer, the offeror has applied for, but not received a certificate of recoverable benefits, he must clarify the offer by stating the matters referred to in heads (b) and © above not more than seven days after he receives the certificate9.

Where

 

 

 

• (i) further deductible benefits have accrued since the Part 36 offer was made; and
  
• (ii) the court gives permission to accept the Part 36 offer,
  

the court may direct that the amount of the offer payable to the offeree10 be reduced by a sum equivalent to the deductible benefits paid to the claimant since the date of the offer11.

 

 

1 As to the meaning of 'Part 36 offer' see para 807A.2 ante.

2 CPR 36.15(1) (CPR Pt 36 substituted by SI 2006/3435), referring to a compensation payment as defined in the Social Security (Recovery of Benefits) Act 1997 s 1 (see damages vol 12(1) (Reissue) para 904).

3 Ie any of the benefits referred to in ibid s 1(1)(b) (see damages vol 12(1) (Reissue) para 904 head (2)): CPR 36.15(2)(a) (CPR Pt 36 as substituted: see note 2 supra).

4 CPR 36.15(3) (CPR Pt 36 as substituted: see note 2 supra). 'Deductible benefits' means any benefits by the amount of which damages are to be reduced in accordance with the Social Security (Recovery of Benefits) Act 1997 s 8 and Sch 2 (see damages vol 12(1) (Reissue) para 919): CPR 36.15(2)(b) (CPR Pt 36 as substituted).

5 CPR 36.15(4) (CPR Pt 36 as substituted: see note 2 supra).

6 As to the meaning of 'offeror' see para 807A.1 note 12 ante.

7 CPR 36.15(5) (CPR Pt 36 as substituted: see note 2 supra).

8 CPR 36.15(6) (CPR Pt 36 as substituted: see note 2 supra). For the purposes of CPR 36.14(1)(a) (see para 807A.12 head (2) ante), a claimant fails to recover more than any sum offered (including a lump sum offered under CPR 36.5) (see para 807A.4 ante) if he fails on judgment being entered to recover a sum, once deductible benefits identified in the judgment have been deducted, greater than the net amount stated under head © in the text: CPR 36.15(8) (CPR Pt 36 as substituted). As to requirement that the court specify the compensation payment attributable to each head of damage see the Social Security (Recovery of Benefits) Act 1997 s 15; and damages vol 12(1) (Reissue) para 921.

9 CPR 36.15(7) (CPR Pt 36 as substituted: see note 2 supra).

10 As to the meaning of 'offeree' see para 807A.1 note 10 ante.

11 CPR 36.15(9) (CPR Pt 36 as substituted: see note 2 supra). As to requirement for permission to accept an offer where the relevant period has expired and further deductible benefits have been paid to the claimant see CPR 36.9(3)(b); and para 807A.7 note 6 ante.

 

UPDATE

 

807–828 Offers to Settle and Payments into Court

CPR Pt 36 substituted: see para 807A.

 

 

 

 

 

 

 

 

 

 

 

 

 

This is a quick post so i havent had chance to fully read but i think there may be something of use Edited January 2, 2009 by steven4064
formatting of section 7 had got mangled

[pt2537]

820. Effect of acceptance of a Part 36 offer or a Part 36 payment.

 

If a Part 36 offer1 or Part 36 payment2 relates to the whole claim and is accepted, the claim will be stayed3. In the case of acceptance of a Part 36 offer which relates to the whole claim the stay will be upon the terms of the offer4 and either party may apply to enforce those terms without the need for a new claim5. If a Part 36 offer or a Part 36 payment which relates to part only of the claim is accepted the claim will be stayed as to that part6 and unless the parties have agreed costs, the liability for costs will be decided by the court7. If the approval of the court is required before a settlement can be binding, any stay which would otherwise arise on the acceptance of such an offer or payment will take effect only when that approval has been given8. Any stay arising under this rule does not affect the power of the court to enforce the terms of a Part 36 offer9, to deal with any question of costs, including interest on costs, relating to the proceedings10 or to order payment out of court of any sum paid into court11.

Where a Part 36 offer has been accepted and a party alleges that the other party has not honoured the terms of the offer and he is therefore entitled to a remedy for breach of contract, the party may claim the remedy by applying to the court without the need to start a new claim unless the court orders otherwise12.

 

 

1 For the meaning of 'Part 36 offer' see para 807 ante.

2 For the meaning of 'Part 36 payment' see para 807 ante.

3 CPR 36.15(1). For the meaning of 'stay' see para 278 note 11 ante.

4 CPR 36.15(2)(a).

5 CPR 36.15(2)(b).

6 CPR 36.15(3)(a).

7 CPR 36.15(3)(b). For the meaning of 'the court' see para 19 ante. As to costs generally see also para 1 note 11 ante.

8 CPR 36.15(4). Such approval is required where the payment or offer is for the benefit of, or is accepted on behalf of, a child or patient (see CPR 21.10; and children and young persons vol 5(4) (2008 Reissue) para 1422); see also CPR 36.18(1); and para 823 post. Where either the court's approval, or an order for payment of money out of court, or an order apportioning money in court between claims under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 or between the persons entitled to such money under the Fatal Accidents Act 1976 (see para 832 post), is required for acceptance of a Part 36 offer or Part 36 payment, application for the approval or the order must be made in accordance with CPR Pt 23: see Practice Direction—Offers to Settle and Payments into Court (2001) PD 36 para 7.8. The court will include in any order so made a direction for the payment out of the money in court and the payment of interest: para 7.9. Unless the parties have agreed otherwise, interest accruing up to the date of acceptance will be paid to the offeror and interest accruing as from the date of acceptance until payment out will be paid to the offeree: para 7.10. As to interest see further para 827 post. For the meaning of 'offeror' and offeree' see para 807 ante.

9 CPR 36.15(5)(a).

10 CPR 36.15(5)(b).

11 CPR 36.15(5)©.

12 CPR 36.15(6).

 

 

 

[andrew1]

F* a duck PT, where d'you dig all that up from? wow, give me some bedtime reading! - this is when I need some fairy Godmother Barrister to hold my hand through all this - I know, it's late and I'm dreaming

 

 

Thanks I'll get into it...

[pt2537]

just been on lexis and it threw up a case called Flynn v Scougall in relation to acceptance of part 36 offers

[steven4064]

Section 7 says "A Part 36 offer is accepted by serving written notice of the acceptance on the offeror". You didn't do that but, if you have a written confirmation that you accepted the offer, I would have thought that amounted to the same thing.

[pt2537]

steven did you remove the numbers from para 7 of my post above? if you did then it removed the reference points??

[pt2537]

oh, BTW Andrew, check your email;)

[steven4064]

steven did you remove the numbers from para 7 of my post above? if you did then it removed the reference points??

Yes, I did.

 

 

 

 

 

 

 

 

 

 

Sorry, I thought the formatting had got screwed up and made it difficult to read

[pt2537]

Andrew, can you confirm if the email came through ok?

[andrew1]

oh, BTW Andrew, check your email;)

 

Thanks PT, I'll have a run through before I go to bed This is going to be a battle of the devils in the detail I think to knuckle this one.