Confidentiality clause

[reallymadwoman]

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?

[BankFodder]

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.

[BazzaS]

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.

[BazzaS]

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.

[reallymadwoman]

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