A more recent version of these Pt 36 And Qocs notes – written by City Law School students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Pt 36 Offers NB: Pt 36 offers don't apply to the SCT. Always think in exam - Is this a Defendant Offer, or a Claimant Offer.
Formal offer is WP re liability/remedies, but can be considered for costs if refused unreasonably per r44.2(4)(c). So avoids litigation.
It can be made before, during, and after proceedings (r36.3(2)). The offer is formal only once it has been formally served on the party or their legal representatives. (r36.7) Unlike contracts, the offer may be rejected, and then later accepted provided it hasn't been formally withdrawn. The offer remains open until withdrawn.
Why make an offer early?
Offer #1 Offer #2
Start Offer RP Offer2 End of RP Trial
Adverse Costs Consequences
Adverse Costs Consequences As you can see, it's better to make an offer, because if it's rejected, get adverse costs consequences for longer. So if you make a reasonable offer, you get more costs back.
OfferTrial -------------------------6 month trial----------------------->
In this case, could have huge costs consequences because the 'end of the relevant period' is end of trial because the offer was made within 21 days of trial.
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) a. Offer deemed to be made when served; r36.7; b. Offer deemed to be inclusive of interest for RP r36.3(1)(b); c. If offer close to trial, RP is end of trial or as judge directs (r36.3(1)(c). d. 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: a. 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. b. 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. c. 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.
Pt 36 offers must not be communicated to the trial judge until all issues of liability and remedies have been decided (r36.13(3)(a)). This doesn't apply to:
1. Defence of Tender Before Claim (Claim already Settled by Pt 36 offer); a. If D wishes to rely on Defence of TBC, must make a payment into court of the amount said to have been tendered (r37.2). b. This may be communicated to trial judge, as an exception to the usual rule per r36.13(23)(a). If judge does discover, judge has discretion whether to continue or withdraw. Judge is entitled to continue is satisfied there is no prejudice to either side (Garrett v Saxby). Must consider OO.
How much should be offered?
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!
If the terms are unclear, can seek clarification within 7 days of service, and the offeror must respond within 7 days of the receipt of the request (r36.8(1)-(2)). If he doesn't, can get an order that he does so per r36.8(2). Must work together to further OO.
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.
Costs Consequences of Acceptance
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