Summary Part 36, Settlement, Trial & Costs.

Part 36, Settlement, Trial & Costs-

Where are we?

 Claim form issued and served. – 7, 16
 Particulars of Claim served – 7, 16
 Defence filed and served -15
 Directions questionnaire completed and returned.
 Case allocated to a track and directions given.
 Disclosure and inspection have taken place - 31
 Witness statements and expert reports have been exchanged. - 32, 35
 The parties are now preparing for trial.

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Part 36 offers-

Offers to settle- The overriding objective encourages attempts to settle



36.7 (1) ...Can be made at any stage of the proceedings, including before. commencement of
proceedings

Can be used by either side to encourage the other side to settle

 This may be because you decide that your client has a strong case (to pressurise the other side
to pay) or because your client has a weak case (to resolve the proceedings without going to trial
and losing)

The claimant/ def can write to the other - words to the effect: “I will accept £x from you to settle these
proceedings” and if the settlement offer conforms with certain other formalities then it is a valid Part 36
offer.



Where an offer is made that should have reasonably been accepted, but isn’t - an unreasonable party
who insists on a trial should be penalised.

 The ‘penalty’ generally takes the form of costs, damages and/or interest.

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Making a Part 36 offer-

36.5(1) - the offer must:

 (a) be in writing
 (b) make clear that it is pursuant to part 36
 (c) specify a period of no less than 21 days – w/in which the def will be liable for the claimants
costs in acc with 36.13/ 36.20, if the offer is accepted
 (d) state if it relates to the whole claim, part or just an issue – if so specify what part Issue

,  (e) state if it accounts a for counter claims

(2) stricter rules apply where the offer is made less than 21 days before trial

36.5(4)(a)-(c) - a part 36 offer will be treated as inclusive of all interest until the relevant date



36.16 (1) it is best to head the offer with ‘without prejudice expect as to costs’

36.16(2)- The fact a Part 36 offer has been made must not be communicated to the trial judge until the
case has been decided - (i.e. when the judge only has costs left to consider).

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Timing and changing offers-

Offer made once it is served on the offeree – 36.7(2)

Offeree is to respond within the relevant time, as defined by - 36.3

36.10 - the offeree may change/ withdraw an offer within the relevant time period

 or after the expiry of the relevant period
 36.10(1)it is possible for an offeror to withdraw or adversely vary their Part 36 offer within the
relevant period.
o However the offeree is still able to accept the original offer within the relevant period.
o If they do this then the offeror will have to apply to court within 7 days of the offeree’s
notice of acceptance (or if earlier, before the first day of trial) for permission to vary or
withdraw - 36.10(2)(b)
o This permission only given if there has been a change of circumstances or it is in the
interests of justice.
 If the offeree does not accept the offer within the relevant period then the withdrawal or
variation of the offer takes effect upon expiry of the relevant period 36.10(2)(a)



36.9(1) a Part 36 offer can only be withdrawn or its terms changed if the offeree has not previously
served a notice of acceptance.

 The offeree must serve a written notice of the withdrawal or change of terms on the other party
- 36.9(2)
 The notice takes effect when it is served on the offeree 36.9(3)

After the expiry of the relevant period the offeror may withdraw the offer or change its terms without
the permission of the court or the offer may be automatically withdrawn in accordance with its terms -
36.9(4)

36.9(5), if an offeror changes the terms to make it more advantageous to the offeree such improved
offer shall be treated ...as the making of a new Part 36 offer on the new terms with a new relevant
period.

, If an offeree rejects a Part 36 offer but that offer remains open (i.e. the offeror has not varied or
withdrawn the offer) then, potentially the offeree can change their mind and subsequently accept the
offer - (Gibbon v Manchester City Council)

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Responding to an offer-

Response is either acceptance or rejection within the relevant period

 Where offers are unclear, the offeree can seek clarification – 36.8
 And the offeror must respond within 7 days – or they may be forces by the court to clarify –
36.8(2)

If a Part 36 offer is made early in the proceedings, the court may order early disclosure to provide the
offeree with additional material on which to base its decision to accept or reject.

In cases with multiple defendants, if some of them make a Part 36 offer, the claimant needs the
permission of the court before accepting it 36.15

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Accepting a Part 36 offer-

Accepted by serving written notice on the offeror – 36.11(1)

 Must also file this with the court 36PD3.1

Acceptance will mean the case/ part of the case is stayed – 36.14(1)

Following acceptance within the relevant period, the claimant will be entitled to:

 The settlement amount contained in the Part 36 offer; and
 Its costs of the proceedings up to the date the notice of acceptance was served on the offeror-
36.13(1)

This is the case regardless of which party made the offer to settle.

The def has 14 days to pay the sum, unless the parties have otherwise agreed in writing – 36.14(6)

 If not paid, the claimant may enter judgment for the amount, to enforce the terms of the
agreement. - The main proceedings remain stayed.

36.11(3)(d) - where trial is in progress, you need courts permission to accept a 36 offer



Rejecting a part 36 Offer -

If the offer is rejected, the case continues towards trial.

Costs & interest consequences of rejecting an offer-

The consequences will depend on if rejection was reasonable or not