#3380 - Part 36 Crib Sheet - Civil Litigation

Part 36

1. Requirements for a Part 36 offer

   1. 36.3(2) Can be made at any time, including before issuing proceedings, or before an appeal

   2. 36.2(2)

      1. (a) Must be in writing

      2. (b) Must state that it is intended to have the consequences of a Part 36 offer

      3. (c) Must specify a period not less than 21 days within which the defendant will be liable for the claimant’s costs as set out in 36.10 if the offer is accepted

         1. This DOES NOT apply if the offer is made less than 21 days before the trial

         2. If there are less than 21 days until trial, the relevant period when the party will have to pay costs if accepted is until the end of the trial or when the court deems

      4. (d) Must state whether the other is related to the whole of the claim or only to part of it

      5. (e) Must state whether it takes account of any counterclaim

   3. PD 36A, para 10.1 – Form N242A

   4. 36.9(3) If the trial has started, court permission is needed to accept a Part 36 offer

   5. 36.13(1) without prejudice save as to costs

   6. 36.13(2) Offers must not be revealed to the judge until all the issues of liability & quantum have been decided

      1. If it is revealed, a judge can withdraw or remain, as long as he is certain that no prejudice is done to either side

   7. 36.7(1) Serve a Part 36 offer on the offeree as under Part 6 CPR

      1. 21 days starts from the deemed date of service

2. Clarification of a Part 36 Offer

   1. 36.8(1) ask for clarification within 7 days of service of the offer

   2. 36.8(2) Offeror must respond within 7 days of receiving the request for clarification

      1. Any failure to respond will allow the offeree to apply for an order

         1. Does not apply if trial has started

      2. 36.8(3) If court order is made, the court must specify the date when the Part 36 offer is treated as to having been made

3. Acceptance of a Part 36 Offer

   1. 36.9(1) Effected by serving a notice of acceptance on the offeror

      1. PD 36, para 3.1 if proceedings have started, file a notice of acceptance with the court

   2. 36.10(5) If accepted late

      1. Defendant pay the claimant’s costs up to the expiry date of the relevant period

      2. Offeree pay offeror’s costs from expiry date to date of acceptance

   3. 36.11(6) Unless otherwise agreed, settlement money must be paid within 14 days of acceptance

   4. 36.11(1) Claim is stayed on terms of the offer

   5. 36.11(7) Court can still enforce the offer, or deal with costs or interest on the costs

4. Withdrawal of a Part 36 Offer

   1. Before expiry of the relevant period

      1. 36.5(3) & PD 36A, para 2.2 For terms less advantageous to the offeree can only be done with court permission

   2. After expiry of the relevant period

      1. Done at any time by serving written notice on offeree

   3. Effects

      1. 36.14(6) Offer ceases to have an effect on costs ,although the court still must consider the offer when they decide on costs

5. Tomlin Order

   1. Proceedings are stayed but should a party breach the agreement ,the court can get involved

      1. Anything the court orders will go in the order

         1. Includes costs only if the court is to make an order as to costs

      2. Anything that the court does not have the power to order will go in the Schedule

         1. Includes if there is a side agreement as to costs

Letter as to Consequences

1. Claimant makes offer

   1. Claimant beats or equals own offer so will receive 36.14(3)

      1. Damages

      2. Statutory interest on damages from cause of action until day 21

      3. Enhanced interest on damages from day 22 to judgment at a maximum rate of 10% above base rate

      4. Standard basis costs from when the claimant first incurred them until day 21

      5. Indemnity basis costs from day 22 until judgment

      6. Enhanced interest on those costs from day 22 until judgment at a max rate of 10% above base rate

      7. Defendant will pay own costs

   2. Claimant loses so will pay

      1. Defendant’s costs on standard basis from when they were first incurred until judgment

         1. Subject to any AEI covering the payment of the defendant’s costs

      2. Own costs from when first incurred until judgment

2. Defendant makes an offer

   1. 36.14(2) Split costs order: Claimant does not beat equal or beat defendant’s offer so defendant pays

      1. Claimant’s Damages

      2. Interest on damages as per the particulars of claim from start of action until day 21

      3. Claimant’s costs on a standard basis from when they were...