#13779 - Pt 36 And Qocs - BPC Civil Litigation

• Formal offer is WP re liability/remedies, but can be considered for costs if refused unreasonably per r44.2(4)(c). So avoids litigation.

Form N242A or a Letter

r36.2: The offer must:

1. In writing (r36.2(2)(a)); (Use form N242A, but not mandatory)

2. State on its face it is a Pt 36 offer (r36.2(2)(b));

3. Specify "relevant period" (acceptance window: min. 21 days; parties agree)

   1. Offer deemed to be made when served; r36.7;

   2. Offer deemed to be inclusive of interest for RP r36.3(1)(b);

   3. If offer close to trial, RP is end of trial or as judge directs (r36.3(1)(c).

   4. Can extend RP by consent, or failing that an application under r3.1(2)(a).

4. State whether it applies to whole/part/issue of claim (r36.2(2)(d)).

5. State whether it takes into account any counterclaim (r36.2(2)(e)).

6. The terms of the compromise.

7. Offer to pay a single sum within 14 days of acceptance;

8. In PI Claims:

   1. Future Pecuniary Loss - r36.5 (EG: Future loss of earnings, carers)

      1. State what damages are payable by lump sum, are for future pecuniary loss, and what is other damages.

      2. Must state what part of damages is payable by PP for future pecuniary loss, and the amount and duration, and whether it is to be varied on RPI (or any other index) or not at all.

      3. The offeree may only accept this offer as a whole.

      4. If offeree accepts and it includes PP, C must within 7 days of acceptance apply to court for award of damages for PP under r41.8.

   2. Provisional Damages Claimed - r36.6

      1. Specify whether or not settlement includes provisional damages;

      2. The sum offered is on the basis C does not deteriorate;

      3. If it does, the limited period in which C can claim;

      4. What that period is;

      5. If C accepts, must apply within 7 days of acceptance for court order for damages for PD under r41.2.

   3. Recoverable benefits Claimed - r35.16:

      1. Must apply for certificate r36.15(5).

      2. State whether offer made including any deductible amounts (r36.15(4));

      3. As follows:

         1. The "Gross" Compensation;

         2. Any deductible amounts and the reduction in the Gross Amount;

         3. The "Net" compensation;

      4. NB: Can make offer before receipt of certificate, but must update not more than 7 days after receipt of certificate (r36.15(7)).

The Offer is only made once served. It is accepted by serving on written notice (r36.7). Thus, the document should be served under r6.2 - Documents other than the Claim Form. So deemed date of service of docs apply.

Offer made by C

• Reasonable amount - Expected damages less litigation risk. (75%?)

Offer Made by D - r36.4

The offer must:

1. Offer a single sum which is inclusive of interest (r36.3(3)) for the whole period until the "Relevant Period" expires (or 21 days after offer, if <21 days before trial) in payment (not instalments) and

2. D must show he is able to pay within 14 days of acceptance or not Pt 36 offer unless C accepts (r36.4(2)) (or judgment if needed order for PD/PP), unless otherwise agreed in writing, r36.11(6)(a).

   1. If not paid within 14 days, or other date as agreed, may enter judgment for unpaid sum (r36.11(7).

   2. Can apply to enforce without bringing new claim! (r36.11(8).).

The Offer is only made once served. It is accepted by serving on written notice (r36.7). Thus, the document should be served under r6.2 - Documents other than the Claim Form. So deemed date of service of docs apply.

No permission needed to accept during RP;

No permission needed outside of RP except as detailed in r36.9(3)

- Needed once trial has begun;

LONGSTOP - r36.9(5) - Needs court's permission, unless parties agree, to accept between end of trial and judgment.

Can accept even if second offer made provided first is not formally withdrawn.

A party can accept an offer only by:

1. Serving a written notice of acceptance, no prescribed form so letter is fine (r36.9). AND

2. Filing A notice of acceptance with court - PD36A(3.1).

A notice of acceptance served after trial has begun is only effective if court's permission is given (r36.9(3)(d)).

If notice of acceptance is served after end of trial, but before judgment, only effective if parties agree (r36.9(5)).

The court's permission is needed to accept a Pt 36 offer where:

1. Pt 36 offer is made by some, but not all, Defendants and r36.12(4) applies r36.9(3)(a);

2. Claim made for PI including deductible amounts, and further benefits or deductible lump sum has been paid to C since date of offer. In this situation, application must state the net amount offered in the Pt 36 offer, the deductible amounts accrued at date of offer, and those subsequently accrued. This must be accompanied by 2x copies of the current certificate of recoverable amounts (Pt36A(3.3).

3. Apportionment is required under r41.3A (FAA claims)

4. Trial has started (r36.9(3)(d);

5. Any party is a child/PP (r21.10);

Rejections, Counter-Offers and Subsequent Offers

1. There is no need to give an express rejection of a Pt 36 offer.

2. Rejection has no effect, as only way to terminate offer is by offeror withdrawing it under r36.3(7).

3. Counter-offer, unlike contract, does not reject Pt 36 offer, either! r36.9(2).

4. Thus there may be two live offers because both are live until withdrawn.