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#16837 - Part 36 Offers - Civil Litigation

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PART 36 OFFERS

CPR 36
When to make the offer

CPR 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.
How to make the offer

CPR 36.5:

  1. be in writing;

  2. make clear that it is made pursuant to Part 36;

  3. 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 36.20 if the offer is accepted;

  4. 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

  5. state whether it takes into account any counterclaim.

Costs Consequences on acceptance of offer

Offeree serves notice of acceptance

CPR 36.13:

  • D pays damages to C if accepted within the relevant period

  • The C is entitled to costs of the proceedings up until the date on which the notice of acceptance was served

  • If accepted late, split costs unless otherwise agreed or ordered

CPR 36.6(2):

  • Must pay all or part of the costs within 14 days or risk default judgement
Costs consequences of rejection of offer D makes offer, C does not accept C makes offer, D does not accept
At trial, the Part 36 Offer is beaten D pays C’s costs subject to court’s discretion

D pays damages awarded plus enhanced rate interest from expiry of relevant period plus an additional amount:

Court will make a split costs order:

  • D pas C’s costs up to the end of the relevant period

  • D pays C’s costs after relevant period on indemnity basis, plus enhanced rate of interest on those costs

  • D pays its own costs
At trial, the Part 36 Offer is not beaten

Court will make a split costs order:

  • D pays C’s costs on standard basis up to the expiry of the acceptance, and bears own costs for this period

  • C pays D’s costs on standard basis plus interest on costs, and bears own costs

 D pays damages at standard rate
C loses at trial C pays D’s costs on standard basis and bears own costs C pays D’s costs on standard basis and bears own costs

  • 36.9 – (1) A Part 36 offer can only be withdrawn, or its terms changed, if the offeree has not previously served notice of acceptance

  • 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...
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