CIVIL LITIGATION: SGS 7-12 REVISION SUMMARY
CPR PART 36 OFFERS
- CPR Pt 36 Offers – Specific way of settling disputes – can be made at any time by either party but usually made
after evidence exchanged before preparations for trial begin and associated costs incurred.
- Rationale – Overriding objective under CPR 1.1(1) of dealing with cases justly and at a proportionate cost – parties
who make sensible proposals to settle disputes before trial should be compensated where other party unreasonably
refuses to settle and insists on proceeding to trial when case could have been settled at an earlier stage.
- Party never penalised for making or reasonably refusing a Pt 36 offer – will only ever be penalised for
unreasonably refusing other party’s Pt 36 offer.
- CPR 36.2(3): Scope of Pt 36 Offer – Part 36 offer can be made in respect of the WHOLE/PART of any issue that
arises in a claim/counterclaim or an appeal from a decision made at trial.
- CPR 36.3(a): Offeror – Party making the offer.
- CPR 36.3(b): Offeree – Party to whom the offer made.
- CPR 36.3(g): ‘Relevant Period’ – Where offer made not less than 21 days before trial, relevant period = period
specified under CPR 36.5(1)(c) or such longer period as the parties may agree BUT is otherwise the period up to the
end of the trial.
(1) Making a CPR Pt 36 Offer
- CPR 36.5(1): Form/Content – Part 36 offer must:
(a) be in WRITING;
(b) make clear that the offer made PURSUANT TO CPR Pt 36;
(c) state that the offer remains open for a period of NOT LESS THAN 21 DAYS, during which time D will be
liable for C’s costs if the offer is accepted under CPR 36.13/36.20;
(d) state whether the offer relates to the WHOLE/PART of a claim or to an ISSUE/PART OF AN ISSUE which
arises in the course of the claim; and
(e) whether the offer takes into account any COUNTERCLAIM.
- CPR 36.5(2) – CPR 36.5(1)(c) does NOT apply if the Pt 36 offer is made LESS than 21 days before the start of a
trial.
- CPR 36.5(4): Interest – Part 36 offer treated as INCLUSIVE of interest UNTIL:
(a) date on which the relevant period specified under CPR 36.5(1)(c) ends; or
(b) date 21 days after the offer was made if CPR 36.5(2) applies.
- CPR 36.16(1): Status of Part 36 Offer – Part 36 offer made WITHOUT PREJUDICE AS TO COSTS.
- CPR 36.16(2): Privilege – Fact that a Part 36 offer made and the terms of the offer must not be communicated to the
trial judge UNTIL the case decided (i.e. only communicated to judge at stage of proceedings when only costs are left to
be considered).
- Errors of Form – Court adopts a pragmatic approach – small ‘technical infringements/defects’ which do not cause
prejudice to either party will NOT invalidate the offer.
(2) Timing and Changing Part 36 Offers
- CPR 36.7: Timing – Part 36 offer may be made at ANY TIME, including before the commencement of proceedings
and is deemed to have been made when it is SERVED on the offeree in accordance with CPR 6.
- Offeree should then respond to the offer within the relevant period under CPR 36.5(1)(c) (either period specified
in the offer of no less than 21 days OR period up until the end of trial).
- Changing/Withdrawing Offer – Offeror can change/withdraw Part 36 within the relevant period in accordance with
CPR 36.9/36.10 OR after the expiry of the relevant period.
- CPR 36.9(1): Changing/Withdrawing Offer – Part 36 offer can ONLY be changed/withdrawn if the offeree has
NOT previously served notice of acceptance of the offer.
- CPR 36.9(2) – Offeror changes terms of offer/withdraws offer by SERVING WRITTEN NOTICE of the change
of terms/withdrawal on the offeree.
- CPR 36.9(3) – Subject to CPR 36.10, change of terms/withdrawal takes effect when the written notice is served
on the offeree.
- CPR 36.9(4): Post Expiry of Relevant Period – If the offeree has NOT given notice of acceptance AND the
relevant period has expired, offeror can withdraw offer/change terms of the offer WITHOUT the need to obtain the
permission of the court OR the offer may be automatically withdrawn in accordance with its terms.
- CPR 36.9(5): More Advantageous Offer – Where offeror changes the terms of a Part 36 offer to make it MORE
ADVANTAGEOUS TO OFFEREE the improved offer will be treated as the making of a NEW PART 36 OFFER
on improved terms NOT as the withdrawal of the original offer AND, subject to CPR 36.5(2), the period specified
under CPR 36.5(1)(c) shall be 21 days or such longer period as specified in the written notice of change of terms of
the offer.
- CPR 36.10(1): Withdrawal/Adverse Change of Terms Within Relevant Period – Rule applies where the offeree
has not issued notice of acceptance and the offeror serves notice BEFORE THE EXPIRY OF THE RELEVANT
PERIOD of WITHDRAWAL of the offer OR of change of the terms of the offer to be LESS ADVANTAGEOUS to
the offeree.
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CPR PART 36 OFFERS
- CPR Pt 36 Offers – Specific way of settling disputes – can be made at any time by either party but usually made
after evidence exchanged before preparations for trial begin and associated costs incurred.
- Rationale – Overriding objective under CPR 1.1(1) of dealing with cases justly and at a proportionate cost – parties
who make sensible proposals to settle disputes before trial should be compensated where other party unreasonably
refuses to settle and insists on proceeding to trial when case could have been settled at an earlier stage.
- Party never penalised for making or reasonably refusing a Pt 36 offer – will only ever be penalised for
unreasonably refusing other party’s Pt 36 offer.
- CPR 36.2(3): Scope of Pt 36 Offer – Part 36 offer can be made in respect of the WHOLE/PART of any issue that
arises in a claim/counterclaim or an appeal from a decision made at trial.
- CPR 36.3(a): Offeror – Party making the offer.
- CPR 36.3(b): Offeree – Party to whom the offer made.
- CPR 36.3(g): ‘Relevant Period’ – Where offer made not less than 21 days before trial, relevant period = period
specified under CPR 36.5(1)(c) or such longer period as the parties may agree BUT is otherwise the period up to the
end of the trial.
(1) Making a CPR Pt 36 Offer
- CPR 36.5(1): Form/Content – Part 36 offer must:
(a) be in WRITING;
(b) make clear that the offer made PURSUANT TO CPR Pt 36;
(c) state that the offer remains open for a period of NOT LESS THAN 21 DAYS, during which time D will be
liable for C’s costs if the offer is accepted under CPR 36.13/36.20;
(d) state whether the offer relates to the WHOLE/PART of a claim or to an ISSUE/PART OF AN ISSUE which
arises in the course of the claim; and
(e) whether the offer takes into account any COUNTERCLAIM.
- CPR 36.5(2) – CPR 36.5(1)(c) does NOT apply if the Pt 36 offer is made LESS than 21 days before the start of a
trial.
- CPR 36.5(4): Interest – Part 36 offer treated as INCLUSIVE of interest UNTIL:
(a) date on which the relevant period specified under CPR 36.5(1)(c) ends; or
(b) date 21 days after the offer was made if CPR 36.5(2) applies.
- CPR 36.16(1): Status of Part 36 Offer – Part 36 offer made WITHOUT PREJUDICE AS TO COSTS.
- CPR 36.16(2): Privilege – Fact that a Part 36 offer made and the terms of the offer must not be communicated to the
trial judge UNTIL the case decided (i.e. only communicated to judge at stage of proceedings when only costs are left to
be considered).
- Errors of Form – Court adopts a pragmatic approach – small ‘technical infringements/defects’ which do not cause
prejudice to either party will NOT invalidate the offer.
(2) Timing and Changing Part 36 Offers
- CPR 36.7: Timing – Part 36 offer may be made at ANY TIME, including before the commencement of proceedings
and is deemed to have been made when it is SERVED on the offeree in accordance with CPR 6.
- Offeree should then respond to the offer within the relevant period under CPR 36.5(1)(c) (either period specified
in the offer of no less than 21 days OR period up until the end of trial).
- Changing/Withdrawing Offer – Offeror can change/withdraw Part 36 within the relevant period in accordance with
CPR 36.9/36.10 OR after the expiry of the relevant period.
- CPR 36.9(1): Changing/Withdrawing Offer – Part 36 offer can ONLY be changed/withdrawn if the offeree has
NOT previously served notice of acceptance of the offer.
- CPR 36.9(2) – Offeror changes terms of offer/withdraws offer by SERVING WRITTEN NOTICE of the change
of terms/withdrawal on the offeree.
- CPR 36.9(3) – Subject to CPR 36.10, change of terms/withdrawal takes effect when the written notice is served
on the offeree.
- CPR 36.9(4): Post Expiry of Relevant Period – If the offeree has NOT given notice of acceptance AND the
relevant period has expired, offeror can withdraw offer/change terms of the offer WITHOUT the need to obtain the
permission of the court OR the offer may be automatically withdrawn in accordance with its terms.
- CPR 36.9(5): More Advantageous Offer – Where offeror changes the terms of a Part 36 offer to make it MORE
ADVANTAGEOUS TO OFFEREE the improved offer will be treated as the making of a NEW PART 36 OFFER
on improved terms NOT as the withdrawal of the original offer AND, subject to CPR 36.5(2), the period specified
under CPR 36.5(1)(c) shall be 21 days or such longer period as specified in the written notice of change of terms of
the offer.
- CPR 36.10(1): Withdrawal/Adverse Change of Terms Within Relevant Period – Rule applies where the offeree
has not issued notice of acceptance and the offeror serves notice BEFORE THE EXPIRY OF THE RELEVANT
PERIOD of WITHDRAWAL of the offer OR of change of the terms of the offer to be LESS ADVANTAGEOUS to
the offeree.
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