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The defendant in a fast track claim has made an offer for an amount which is acceptable to the claimant but is insisting on a confidentiality clause which the claimant does not want to sign.

 

What are the potential cost implications if the claimant continues with the claim and is awarded that amount or less?


RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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I rather fancy that in those circumstances, if confidentiality is part of the deal then there is a risk that the part 36 rules would apply and that there could be a cost penalty.


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I assume their offer isn’t a Part 36 offer?

Have they hinted at “costs consequences”??

 

Make a part 36 offer to accept the same sum, almost identical to their offer, but without the confidentiality clause. That’ll put them on the back foot / at risk of costs consequences if it does go to needing the court to reach judgement.

 

Include a covering note that you are aware of their offer but cannot accept a confidentiality clause, and believe that any such confidentiality clause prevents it being a part 36 offer.

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I rather fancy that in those circumstances, if confidentiality is part of the deal then there is a risk that the part 36 rules would apply and that there could be a cost penalty.

 

I’m not sure that a confidentiality clause can be part of a part 36 offer.

Part 36 consequences comes into play when a court reaches a judgement, and with that comes the case being a matter of public record.

 

Confidentiality clauses are much more achievable with a Tomlin Order (T.O.), where the case gets stayed, and a judgement never gets formally entered. The confidentiality can be put in the Schedule to the T.O. that the court never has to have on record.

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Thanks for the advice. Making a counter-offer without the confidentiality clause seems to be the answer.


RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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