SGS 7- Part 36 offers, settlement, route to trial and costs
Part 36 Offers
- Can be made at any time including before proceedings have been issued CPR 36.7(1)
- Offeree can be penalised (costs/damages/interest) for rejecting an offer that ought to be accepted
- Offers treated as “without prejudice save as to costs” so are privileged (CPR 36.16(1).
Making an offer
Form
CPR 36.5 states a Part 36 offer must be:
1. In writing (eg a N242A form) (1(a))
2. Make clear it is pursuant to Part 36 (1(b))
3. Offer is open for not less than 21 days (1(c))
4. Whether it relates to the entire claim or part of it
5. Whether it accounts for any counter claim
Include:
- Provision for interest to accrue on the offer if it is accepted late
- Head the letter “without prejudice except as to costs” 36.16(1) so a judge is not aware of it until deciding costs 36.16(2)
Timing
- It is made when served on the offeree 36.7(2)
- 36.9(2) an offeror may change or withdraw the offer within the relevant period 36.10 or after the expiry of the relevant period
- Cannot change or withdraw if offeree has served a notice of acceptance 36.9(1).
- 36.10(1) an offeror can withdraw or adversely vary their part 36 offer within the relevant period. However, the offeree can still accept
the original offer in the relevant period unless the offeror applies to court within 7 days of the offerees notice of acceptance for
permission to vary or withdraw 36.10(2)(b).
Responding to an offer
- Offeree should respond clearly accepting or rejecting the offer within the relevant period.
- Offeree can seek clarification within 7 days of offer being made 36.8.
Accepting an offer
- Accepted by serving a written notice of acceptance on the offeror 36.11(1) and must be filed with the court 36PD3.1 if proceedings
have been issued.
- Need permission to accept at trial 36.11(3)(d).
- If accepted, the case will be stayed 36.14(1).
- The claimant will be entitled to the settlement amount as stated in the offer and costs of proceedings up to the date the notice was
served on the offeror 36.13(1).
- The defendant has 14 days from acceptance to pay the settlement amount agreed 36.14(6) unless they have agreed otherwise.
Rejecting an offer
- The consequence of rejecting will depend on whether it was unreasonable and will depend on the relationship between the offer
amount and the amount awarded at trial.
CPR 36.17 consider:
1. Who has made the offer? (Claimant or defendant?)
2. Which part of 36.17 if any applies?
3. Who does the court wish to penalise?
4. How and for what period?
Claimants offer Defendants offer
36.17(1)(b)- CPR 36.17(1)(a)-
- judgment against D is at least as advantageous to C as the proposals contained - rule applies where claimant fails to obtain a
in C’s Part 36 offer judgment “more advantageous” than a
Penalty- 36.17(4)- C is entitled to: defendant’s part 36 offer
- interest on whole or part of any sum not exceeding 10% above base rate from Penalty- 36.17(3)-
the end of the relevant period (time after the offer was made) - court will use its discretion to give defendant
- costs on an indemnity basis costs from the date of expiry of the relevant
- interest on those costs at a rate not exceeding 10% above base rate period and
- awarded additional amount maximum of £75,000 (LOOK AT THE CPR RULES - interest on costs.
1
, SGS 7- Part 36 offers, settlement, route to trial and costs
HERE ON CHAPTER 7 PAGE 7).
36.17(2) explains “more advantageous” that comparing the offer to the judgment
Consequences of rejecting a claimant’s part 36 offer
- The court may penalise the defendant for rejecting and incurring costs for trial etc
- D unreasonably rejects the offer if at the end of the trial it has to pay C the same as or more than it could have chosen to pay by
accepting the offer
- D will not be unreasonable if C is awarded less than the offer
Consequences of rejecting a defendant’s part 36 offer
- The court may penalise the claimant for rejecting and incurring costs for trial etc
- C may be penalised if it is not awarded any more than it could have got from D by accepting the offer
Claimant makes a Part 36 offer:
C wins at least as advantageous C wins less than the amount of the offer C loses and defendant wins
- D pays C’s costs for entire claim - D pays C’s costs CPR 44.2 for the life - 44.2 so C pays D’s costs
life 44.2 of the claim - No penalty
- Penalties under 36.17(4) also - No penalty as they should have
payable from the end of the accepted the offer.
relevant period
2
Part 36 Offers
- Can be made at any time including before proceedings have been issued CPR 36.7(1)
- Offeree can be penalised (costs/damages/interest) for rejecting an offer that ought to be accepted
- Offers treated as “without prejudice save as to costs” so are privileged (CPR 36.16(1).
Making an offer
Form
CPR 36.5 states a Part 36 offer must be:
1. In writing (eg a N242A form) (1(a))
2. Make clear it is pursuant to Part 36 (1(b))
3. Offer is open for not less than 21 days (1(c))
4. Whether it relates to the entire claim or part of it
5. Whether it accounts for any counter claim
Include:
- Provision for interest to accrue on the offer if it is accepted late
- Head the letter “without prejudice except as to costs” 36.16(1) so a judge is not aware of it until deciding costs 36.16(2)
Timing
- It is made when served on the offeree 36.7(2)
- 36.9(2) an offeror may change or withdraw the offer within the relevant period 36.10 or after the expiry of the relevant period
- Cannot change or withdraw if offeree has served a notice of acceptance 36.9(1).
- 36.10(1) an offeror can withdraw or adversely vary their part 36 offer within the relevant period. However, the offeree can still accept
the original offer in the relevant period unless the offeror applies to court within 7 days of the offerees notice of acceptance for
permission to vary or withdraw 36.10(2)(b).
Responding to an offer
- Offeree should respond clearly accepting or rejecting the offer within the relevant period.
- Offeree can seek clarification within 7 days of offer being made 36.8.
Accepting an offer
- Accepted by serving a written notice of acceptance on the offeror 36.11(1) and must be filed with the court 36PD3.1 if proceedings
have been issued.
- Need permission to accept at trial 36.11(3)(d).
- If accepted, the case will be stayed 36.14(1).
- The claimant will be entitled to the settlement amount as stated in the offer and costs of proceedings up to the date the notice was
served on the offeror 36.13(1).
- The defendant has 14 days from acceptance to pay the settlement amount agreed 36.14(6) unless they have agreed otherwise.
Rejecting an offer
- The consequence of rejecting will depend on whether it was unreasonable and will depend on the relationship between the offer
amount and the amount awarded at trial.
CPR 36.17 consider:
1. Who has made the offer? (Claimant or defendant?)
2. Which part of 36.17 if any applies?
3. Who does the court wish to penalise?
4. How and for what period?
Claimants offer Defendants offer
36.17(1)(b)- CPR 36.17(1)(a)-
- judgment against D is at least as advantageous to C as the proposals contained - rule applies where claimant fails to obtain a
in C’s Part 36 offer judgment “more advantageous” than a
Penalty- 36.17(4)- C is entitled to: defendant’s part 36 offer
- interest on whole or part of any sum not exceeding 10% above base rate from Penalty- 36.17(3)-
the end of the relevant period (time after the offer was made) - court will use its discretion to give defendant
- costs on an indemnity basis costs from the date of expiry of the relevant
- interest on those costs at a rate not exceeding 10% above base rate period and
- awarded additional amount maximum of £75,000 (LOOK AT THE CPR RULES - interest on costs.
1
, SGS 7- Part 36 offers, settlement, route to trial and costs
HERE ON CHAPTER 7 PAGE 7).
36.17(2) explains “more advantageous” that comparing the offer to the judgment
Consequences of rejecting a claimant’s part 36 offer
- The court may penalise the defendant for rejecting and incurring costs for trial etc
- D unreasonably rejects the offer if at the end of the trial it has to pay C the same as or more than it could have chosen to pay by
accepting the offer
- D will not be unreasonable if C is awarded less than the offer
Consequences of rejecting a defendant’s part 36 offer
- The court may penalise the claimant for rejecting and incurring costs for trial etc
- C may be penalised if it is not awarded any more than it could have got from D by accepting the offer
Claimant makes a Part 36 offer:
C wins at least as advantageous C wins less than the amount of the offer C loses and defendant wins
- D pays C’s costs for entire claim - D pays C’s costs CPR 44.2 for the life - 44.2 so C pays D’s costs
life 44.2 of the claim - No penalty
- Penalties under 36.17(4) also - No penalty as they should have
payable from the end of the accepted the offer.
relevant period
2
