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Oct 2, 2023 · FIXED COSTS AND PART 36: THE 35% GAIN IF A CLAIMANT BEATS THEIR OWN OFFER. The new rules introduce a fixed percentage as an “additional liability” in cases where a case is subject to fixed costs and a case has Part 36 costs consequences.
- General
- Making Offers
- Clarifying, Withdrawing and Changing The Terms of Offers
- Accepting Offers
- Unaccepted Offers
- Personal Injury Claims
- Miscellaneous
- Scope of This Section and Definitions
- Costs Consequences of Acceptance of A Part 36 Offer
- Costs Consequences Following Judgment
Scope of this Section
36.2 (1) This Section— (a)applies to an offer to settle to which Section II of this Part applies, unless otherwise stated; but (b)does not apply to an offer to settle to which Section III applies. (2) Nothing in this Section prevents a party making an offer to settle in whatever way that party chooses, but if the offer is not made in accordance with rule 36.5, it will not have the consequences specified in this Section. (Rule 44.2 requires the court to consider an offer to settle that does no...
Definitions
36.3In this Section— (a) the party who makes an offer is the “offeror”; (b) the party to whom an offer is made is the “offeree”; (c) a “trial” means any trial in a case whether it is a trial of all issues or a trial of liability, quantum or some other issue in the case; (d) a trial is “in progress” from the time when it starts until the time when judgment is given or handed down; (e) a case is “decided” when all issues in the case have been determined, whether at one or more trials; (f) “tria...
Application of Part 36 to appeals
36.4 (1) Except where a Part 36 offer is made in appeal proceedings, it shall have the consequences set out in this Section only in relation to the costs of the proceedings in respect of which it is made, and not in relation to the costs of any appeal from a decision in those proceedings. (2) Where a Part 36 offer is made in appeal proceedings, references in this Section to a term in the first column below shall be treated, unless the context requires otherwise, as references to the correspon...
Form and content of a Part 36 offer
36.5 (1) A Part 36 offer must— (a) be in writing; (b) make clear that it is made pursuant to Part 36; (c) specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with rule 36.13 or 36.23 if the offer is accepted; (d) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and (e) state whether it takes into account any counterclaim. (Rule 36.7 makes...
Part 36 offers – defendant’s offer
36.6 (1) Subject to rules 36.18(3) and 36.19(1), a Part 36 offer by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money. (2) A defendant’s offer that includes an offer to pay all or part of the sum at a date later than 14 days following the date of acceptance will not be treated as a Part 36 offer unless the offeree accepts the offer.
Time when a Part 36 offer is made
36.7 (1) A Part 36 offer may be made at any time, including before the commencement of proceedings. (2) A Part 36 offer is made when it is served on the offeree. (Part 6 provides detailed rules about service of documents.)
Clarification of a Part 36 offer
36.8 (1) The offeree may, within 7 days of a Part 36 offer being made, request the offeror to clarify the offer. (2) If the offeror does not give the clarification requested under paragraph (1) within 7 days of receiving the request, the offeree may, unless the trial has started, apply for an order that the offeror do so. (Part 23 contains provisions about making an application to the court.) (3) If the court makes an order under paragraph (2), it must specify the date when the Part 36 offer...
Withdrawing or changing the terms of a Part 36 offer generally
36.9 (1) A Part 36 offer can only be withdrawn, or its terms changed, if the offeree has not previously served notice of acceptance. (2) The offeror withdraws the offer or changes its terms by serving written notice of the withdrawal or change of terms on the offeree. (Rule 36.17(7) deals with the costs consequences following judgment of an offer which is withdrawn.) (3) Subject to rule 36.10, such notice of withdrawal or change of terms takes effect when it is served on the offeree. (Rule 36...
Withdrawing or changing the terms of a Part 36 offer before the expiry of the relevant period
36.10 (1) Subject to rule 36.9(1), this rule applies where the offeror serves notice before expiry of the relevant period of withdrawal of the offer or change of its terms to be less advantageous to the offeree. (2) Where this rule applies— (a) if the offeree has not served notice of acceptance of the original offer by the expiry of the relevant period, the offeror’s notice has effect on the expiry of that period; and (b) if the offeree serves notice of acceptance of the original offer before...
Acceptance of a Part 36 offer
36.11 (1) A Part 36 offer is accepted by serving written notice of acceptance on the offeror. (2) Subject to paragraphs (3) and (4) and to rule 36.12, a Part 36 offer may be accepted at any time (whether or not the offeree has subsequently made a different offer), unless it has already been withdrawn. (Rule 21.10 deals with compromise, etc. by or on behalf of a child or protected party.) (Rules 36.9 and 36.10 deal with withdrawal of Part 36 offers.) (3) The court’s permission is required to a...
Acceptance of a Part 36 offer in a split-trial case
36.12 (1) This rule applies in any case where there has been a trial but the case has not been decided within the meaning of rule 36.3. (2) Any Part 36 offer which relates only to parts of the claim or issues that have already been decided can no longer be accepted. (3) Subject to paragraph (2) and unless the parties agree, any other Part 36 offer cannot be accepted earlier than 7 clear days after judgment is given or handed down in such trial.
Costs consequences of acceptance of a Part 36 offer
36.13 (1) Subject to paragraphs (2) and (4) and to rule 36.23, where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings (including their recoverable pre-action costs) up to the date on which notice of acceptance was served on the offeror. (Rule 36.20 makes provision for the costs consequences of accepting a Part 36 offer in certain personal injury claims where the claim no longer proceeds under the RTA or EL/PL Protocol.) (2) W...
Restriction on disclosure of a Part 36 offer
36.16 (1) A Part 36 offer will be treated as “without prejudice except as to costs”. (2) The fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the trial judge until the case has been decided. (3) Paragraph (2) does not apply— (a) where the defence of tender before claim has been raised; (b) where the proceedings have been stayed under rule 36.14 following acceptance of a Part 36 offer; (c) where the offeror and the offeree agree in writing that it...
Costs consequences following judgment
36.17 (1) Subject to rule 36.24, this rule applies where upon judgment being entered— (a) a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer; or (b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer. (2) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, “more advantageous” means better in money terms by any amount, however small,...
Personal injury claims for future pecuniary loss
36.18 (1) This rule applies to a claim for damages for personal injury which is or includes a claim for future pecuniary loss. (2) An offer to settle such a claim will not have the consequences set out in this Section unless it is made by way of a Part 36 offer under this rule. (3) A Part 36 offer to which this rule applies may contain an offer to pay, or an offer to accept— (a) the whole or part of the damages for future pecuniary loss in the form of— (i) a lump sum; (ii) periodical payments...
Offer to settle a claim for provisional damages
36.19 (1) An offeror may make a Part 36 offer in respect of a claim which includes a claim for provisional damages. (2) Where the offeror does so, the Part 36 offer must specify whether or not the offeror is proposing that the settlement shall include an award of provisional damages. (3) Where the offeror is offering to agree to the making of an award of provisional damages, the Part 36 offer must also state— (a) that the sum offered is in satisfaction of the claim for damages on the assumpti...
Deduction of benefits and lump sum payments
36.20 (1) In this rule and rule 36.11— (a) “the 1997 Act” means the Social Security (Recovery of Benefits) Act 19975; (b) “the 2008 Regulations” means the Social Security (Recovery of Benefits)(Lump Sum Payments) Regulations 20086; (c) “recoverable amount” means— (i) “recoverable benefits” as defined in section 1(4)(c) of the 1997 Act; and (ii) “recoverable lump sum payments” as defined in regulation 1 of the 2008 Regulations; (d) “deductible amount” means— (i) any benefits by the amount of w...
Cases in which the offeror’s costs have been limited to court fees
36.21 (1) This rule applies in any case where the offeror is treated as having filed a costs budget limited to applicable court fees, or is otherwise limited in their recovery of costs to such fees. (Rule 3.14 provides that a litigant may be treated as having filed a budget limited to court fees for failure to file a budget.) (2) “Costs” in rules 36.13(5)(b), 36.17(3)(a) and 36.17(4)(b) shall mean— (a) in respect of those costs subject to any such limitation, 50% of the costs assessed without...
36.22.—(1) This Section applies where a claim is one to which Section VI, Section VII or Section VIII of Part 45 applies. (2) In this Section— (a)“fixed cost medical report” and “soft tissue injury claim” have the meaning ascribed by paragraph 1.1(10A) and (16A) respectively of the RTA Protocol; (b)for the purposes of rules 36.23 and 36.24, a defen...
36.23.—(1) Where a Part 36 offer is accepted within the relevant period, the claimant is entitled to— (a)the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date on which notice of acceptance was served on the offeror; and (b)any applicable additional fixed costs allowed under Section I, Sectio...
36.24.—(1) Rule 36.17 applies with the following modifications. (2) Subject to paragraphs (3), (4) and (5), where an order for costs is made pursuant to rule 36.17(3)— (a)the claimant is entitled to— (i)the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date on which the relevant period expire...
Mar 7, 2019 · A Part 36 offer is an important tactical weapon that can be used by either party to encourage the other side to settle a dispute. That is because a Part 36 offeror may be entitled to substantial costs benefits if successful at trial. However, in order to benefit an offeror must comply with the rules set out in CPR Part 36.
A Part 36 Offer is a written offer to settle which must specify a period of not less than 21 days (‘the Relevant Period’) during which it can be accepted. If it is not accepted within the Relevant Period and the other party does not beat that offer then there will be costs consequences.
Feb 5, 2021 · “(5) A Part 36 offer to accept a sum of money may make provision for accrual of interest on such sum after the date specified in paragraph (4). If such an offer does not make any such provision, it shall be treated as inclusive of all interest up to the date of acceptance if it is later accepted.”.
Dec 18, 2014 · The rule makes it clear that it is open to a party to make offers in way they choose. However these will not have Part 36 costs consequences, although such offers can be considered under CPR 44.2. “ (2) Nothing in this Section prevents a party making an offer to settle in whatever way that.
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Feb 9, 2015 · The new Rule 36: path to change. February 9, 2015. Part 36 offers – to accept or pay some amount less than the full amount in dispute - are powerful weapons in every litigator’s armoury which have led to the settlement of many disputes since their introduction in 1999.
