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LPC Law Notes Civil Litigation Notes

Part 36 Offer Notes

Updated Part 36 Offer Notes

Civil Litigation Notes

Civil Litigation

Approximately 418 pages

A collection of the best LPC Civil Litigation notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

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The following is a more accessible plain text extract of the PDF sample above, taken from our Civil Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Why?

  • C or D may make a Part 36 offer, stating the sum it is prepared to receive or pay

  • Creates a formal settlement framework

  • Put you in good stead if you make one and it’s refused / they end up getting less at trial

  • It is a means of pressuring the other side

  • It removes the uncertainty of what the court may award/decide
When?

  • It can be made before, during and after proceedings (r.36.3(2)). The offer becomes formal only when it has formally been served (if D or C legally represented, service is to their Sol).
Form and Content

  • Form N242A precedent P.302 or a letter precedent P.365

  • r.36.2: the offer must:

    1. be in writing

    2. State on its face its intention of being a Part 36 offer

    3. Specify the “relevant period” (the acceptance window of minimum 21 days):

      • Offer is deemed to made when it is served on the other side (r.36.7(1)) P.208

      • Offer is deemed inclusive of interest for 21 days (r.36.3(1)(b))

      • If made close to trial, relevant period is the end of trial (r.36.3(1)(c)) P.208

      • Once trial starts, offeree needs court’s permission to accept (r.36.9(3))

      • Financial consequences of r.36.14(3) & (2) won’t apply to the offer unless the judge has abridged the relevant period

    4. State whether it relates to the whole or part of the claim (if part, which part)

    5. State whether it takes into account any counter-claim

  • E.g. offer faxed on morning of Fri 9/03/12, it expires at midnight on 30/03/12
Judge aware?

  • The court and judge will not be aware of an offer being made until costs are assessed

  • It is made on a “without prejudice save as to costs” (r.36.13(1)) and therefore , the Part 36 offer can NOT be referred to during court proceedings
How much should be offered?

  • r.36.4: where the offer is made by the defendant, it must:

  1. offer a single sum in payment (not instalments); and

  2. be willing to pay the whole amount within 14 days of C accepting it

  • The sum offered is inclusive of interest until the relevant period expires (r.36.3(3))

  • Start off low, because more than on Offer can be made

Clarification

P.209

 Under(r.36.8) If the offer is not clear, the offeree may request clarification from the offeror within 7 days of receiving the order and it is best to put it in writing

Withdrawing a Part 36 Offer

Implied Withdrawal

  • Not applicable

  • So, if you want to reduce your second offer, you must expressly withdraw the first offer
Express Withdrawal

  • Must be done in writing

  • Usually, just serve a letter on the offeree
Court Permission

  • If relevant period has ended, no permission is necessary

  • If relevant period is ongoing, permission to withdraw must be sought (r.36.5(3))
The Effect

  • Upon changing or withdrawing an offer, the offer is no longer a Part 36 Offer

  • Therefore, the financial consequences under r.36.14 will no longer apply to it

  • Always do a timeline of dates (loss; C instruct sols; D instruct sols; expiry of offers; judgment)

Accepting a Part 36 Offer

When?

  • At any time, before or after the relevant period (provided it has not been withdrawn) (C v D (2011))

  • If attempt to accept is during trial, the court’s permission must be sought (r.36.9(3))
How?

  • Serve a written notice on the offeror (r.36.9(1))

  • If attempt to accept is during trial, also serve written notice on the court (PD 36 para 3.1)

  • If party is incapable (mental or child), court’s permission to accept must be sought

The Effect

P.210

  • The claim is stayed

  • If C accepts D’s offer, D must pay all the money within 14 days of accepting or C can enter judgment for any sum outstanding (r.26.11(6) and (7))

D accepts C’s offer P.383 C accepts D’s offer within the relevant period P.384 C accepts D’s offer after the relevant period P.385

  • D pays C’s costs up to the date the notice of acceptance was served

  • Costs are agreed by the parties (or, in default, by the court)

  • D pays C’s costs up to the date the notice of acceptance was served

  • If costs cannot be agreed, the court will determine them on standard basis

  • D pays C’s costs up to the date the relevant period expired

  • C usually pays D’s costs thereafter (r.36.10(5))

Permutations and Consequences at trial of Unaccepted Part 36 Offers (r.36.14)

C Wins & beats D’s & own offer (p.384) C Wins & beats D’s offer but not own offer (p.385) C Wins but does not beat D’s offer (p.382)

C loses at trial

(p.383)

D pays C interest on damages as claimed in the Particulars of Claim

From: date of loss

To: 21 days after C’s offer

D pays C interest on damages as claimed in the Particulars of Claim

From: date of loss

To: date of judgment

D pays C interest on damages as claimed in the Particulars of Claim

From: date of loss

To: date of judgment

 NO damages awarded to C as failed to establish liability

D pays C’s costs on a standard basis

From: date C instructed sol

To: 21 days after C’s offer

D pays C’s costs on a standard basis

From: date C instructed sol

To: date of judgment

D pays C’s costs on a standard basis

From: date C instructed sol

To: 21 days after D’s offer

C pays D’s costs on a standard basis

From: date D instructed sol

To: date of judgment
Consequences under r.36.14(3) Penalties commence after C’s offer expired None –treated as if Part 36 never offered Consequences under r.36.14(2) for C to pay Some of D’s costs Consequences under r.36.14(2) for C to pay Some of D’s costs

D pays C interest on damages at base rate plus up to maximum 10% (J’s discretion) above base rate – CPR 36.14(3)(a)

From: 22 days after C offer

To: date of judgment

 N/A

C pays D’s costs on a standard basis

From: 22 days after D offer

To: date of judgment

C pays interest on D’s costs at base rate plus up to 1% above the base rate - Bim Kemi v Blackburn Chemical

From: 22 days after D offer

To: date of judgment

D pays C’s costs on

Indemnity Basis for work during period CPR 36.14(3)(b)

FROM Day 22

TO Judgment Date

 N/A

C pays interest on D’s costs at base rate plus up to 1% above the base rate -...

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