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Part 36 Offers, Pre Trial, Trial And Costs Notes

LPC Law Notes > Civil Litigation Notes

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A more recent version of these Part 36 Offers, Pre Trial, Trial And Costs notes – written by Cambridge And Oxilp And College Of Law students – is available here.

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Pre trial, trial and normal cost orders 1) Pre-trial

1) Exchange of expert reports

2) Arrange a without prejudice meeting to ascertain common ground as a result of the expert reports

3) Prepare brief to counsel and sort out administration issues

a) Possibly involving counsel in the draft of the PoC

b) Prepare the brief itself covering:

Summary of the case

Background facts

c) Contract their clerk and sort out:

Costs; and


4) Complete the listing questionnaire / pre-trial checklist (N170) which covers: a) Trial length b) Trial date c) CMC directions and whether they have been complied with d) Availability of witnesses of fact and experts

5) Compile the trial bundle including: a) The 'core bundle' - Key documents b) Claim form, applications, witness evidence

6) Compile Case summary for judge

7) Compile skeleton argument for Judge

8) Compile reading list (stating how long it will take to read each document and total reading time

9) Serve on the other side, if necessary, a notice to admit facts

If they refuse and it becomes evident at trial they have admitted it, there will be cost consequences

2) Trial

Opening speech by claimant's advocate, claimant's case, defendant's case, closing speeches and judgement.

3) Costs after trial

Who pays - Costs of interim applications

It is in accordance with whatever the order was at the interim hearing

Who pays at trial - The general rule

The unsuccessful party pays the successful party's costs - CPR 44.3(2)

Who pays at trial - Factors when deviating from general rule on costs

The court will exercise its discretion taking into account: CPR 44.5(3) a) The conduct of the parties b) Amounts involved in the case c) Any admissible offer to settle made by a party (i.e. not Part 36) d) Complexity of the matter e) Skill, effort and specialised knowledge involved f) Time spent on the case

When are costs payable?

Within 14 days - CPR 44.8

What is the procedure for assessment of costs?

a) Summarily

The court determines the amount payable by way of costs immediately at the end of a hearing

b) Detailed

An authorised court officer will quantify the cost and decide how much should be paid in separate proceedings. These must be commenced within 3 months of the date of judgement - CPR 47.7

a) Standard

Costs that will be allowed by the court are those which: - CPR 44.4(2) + 44.5(1)

Have been proportionately and reasonably incurred; and

Are proportionate and reasonable in amount; and

Any doubt is resolved in favour of the paying party.

The successful party normally has 60-70% of their costs paid

b) Indemnity

Costs that will be allowed by the court are those which: - CPR 44.4(3) + 44.5(1)

Have been reasonably incurred; and

Are reasonable in amount; and

Any doubt is resolved in favour of the receiving party

The successful party normally has 70-80% of their costs paid

What is the basis of the assessment of costs?

Pre-trial, Trial and Part 36 Offers 1) Making a Part 36 offer

a) Form and content of the offer - CPR 36.2

1) It must be in writing (either in the N242A form, or more commonly in a letter) - CPR 36.2

2) It must state that it is intended to have the effect of a Part 36 - CPR 36.2

3) It must state that it will stay open for a period of not less than 21 days (the relevant period) and that during this period the defendant will be liable for the claimants costs if the offer is accepted - CPR 36.2

4) It must state if it relates to the whole of the claim or part of it (e.g. just in relation to liability) - CPR 36.2

5) It must state whether it takes into account any counterclaim - CPR 36.2

6) It must state whether the settlement offer includes or excludes interest. If this is not mentioned, the offer will be deemed to include interest - CPR 36.3(3)

7) It must state whether the offer amount is inclusive of the client's costs or whether it is an offer to settle plus the client's costs.

8) It must be headed 'without prejudice except as to costs' however, irrespective of this, it will gain without prejudice status if the content is sufficient - CPR 36.13

b) Timing of making the offer

2) Withdrawing the offer

At any point either before proceedings or during the trial

1) Within the relevant period, but only with the permission of court - CPR 36.3(5)

If offeror does not formally withdraw at the of the relevant period" 2)the After the expiry of the relevant period iftheit offer has not beenend accepted
- CPR 36.3(6)

The offer is technically still available;

It may still be accepted by the other party;

However the cost consequences of a Part 36 offer will not apply

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