P36

Question 1

What does judge consider re justness for p36?

Answer 1

circumstances of the case including the terms of the Part 36 offer,

when it was made esp how close to the trial what information was available to the parties at the time,

Ps conduct whether it was a genuine attempt to settle the proceedings.

Question 2

What is the purpose of a Part 36 offer?

Answer 2

There are significant penalties attached if the relevant party makes the ‘wrong’ decision and rejects an offer that the court subsequently deems to be suitable.

This puts pressure on the opponent to accept an offer made in accordance with the provisions of Part 36, and on their solicitors to give appropriate advice.

Question 3

What are the 4 formalities?

Answer 3

(a) be in writing;

(b) make clear it is made pursuant to Part 36;

(c) specify a period of not less than 21 days during which, if the offer is accepted, the defendant will pay the claimant’s costs (known as ‘the relevant period’); and

(d) state whether it relates to the whole of the claim or to part of it, and whether it takes into account any counterclaim.

Question 4

Give two examples of when it might be unjust to impose a P36 order?

Answer 4

may be unjust where the offeror has not provided sufficient disclosure to allow the offeree to make an informed decision; or, the Part 36 offer expired only days before the trial and crucial allegations that had not been pleaded were raised in the opening of the case.

Question 5

What are the CC where a claimant makes a P36 offer and equal or beat own offer?

Answer 5

Cl awarded:
* sum awarded (consists of damages and interest);and
* For damages of up to £500,000, an additional 10% of the sum awarded; and
* for damages £500,000 - £1 million 10% of the first £500,000 and thereafter 5% *
up to a maximum of £75,000.

UP TO DAY 21
* interest on the damages from the date of loss as claimed in the particulars of claim
* costs on the standard basis (multi-track) or fixed costs (fast and intermediate tracks) from the date C incurred them

DAY 22 TO TRIAL -
interest on the damages at a maximum of 10% above base rate
* costs on an indemnity basis (multi-track) or with a 35% uplift on the claimant’s fixed recoverable costs (fast and intermediate tracks)
* interest on the costs at a maximum of 10% above base rate

Question 6

What are the CC where a claimant makes a P36 offer and wins but judgment sum is less than their offer?

Answer 6

NOTHING - NO EFFECT. neither did anything ‘wrong’. claimant was right to make an offer but pitched it too high defendant was correct to turn it down for the same reason.

Question 7

What are the CC where a claimant makes a P36 offer and loses at trial?

Answer 7

• cl deosn’t get damages • cl pays d costs as losing party on SB (MT) or FC (F/IT) no effect

Question 8

What happens if D makes a P36 offer and CL wins at trial (damages) but doesn’t get higher judgment sum?

Answer 8

Cl is punished.
SPLIT COSTS ORDER bc costs divided b/w parties at 21 days. C is awarded as usual for winning: * damages and * interest from the date of loss as claimed in the particulars of claim (usual) Up to Day 21: * D pays C’s costs on the standard basis (multi-track) or fixed costs (fast and intermediate tracks) from the date when C incurred them (usual since loser pays W cost) From Day 22 to judgment (cl punished) : When do cost consequences apply on P36 offers? Where a party does not accept the offer, depending on the outcome at trial, penalties are imposed from day 22 bc party who made error of judgment added to opp costs and wasted time (unless unjust) * C pays D’s costs on the standard basis (multi-track) or fixed costs (fast and intermediate tracks) and * interest on those costs usually at 1% or 2% above base rate (penalty but not as bad as won)

Question 9

What happens if D makes P36 offer and CL wins and also beats D offer?

Answer 9

Cl wins damages as usual meaning • judgment damages plus interest as claimed in POC; and • the claimant’s costs as losing party, on the standard basis (multi-track) or fixed costs (fast and intermediate tracks). Part 36 has no effect.

Question 10

D makes P36 offer, cl rejects and loses at trial?

Answer 10

• as usual pays Ds damages and interest and costs as losing party and • punished for not accepting p36 and losing so pays interests on costs from day 22-judgment at 1 or 2% above BR

Question 11

When is the offer made?

Answer 11

When served on the other party - using the “other” document rules.

Question 12

P36 offers are treated as what?

Answer 12

‘without prejudice save as to costs’ = the trial judge will not be made aware of the offer until the case has been decided, both liability and quantum.

Only when the issue of costs falls to be dealt with will any relevant offer be produced to the judge.

Question 13

The introduction of fixed recoverable costs to the fast and intermediate tracks has affected the rules which apply to successful Part 36 offers made on those tracks. How?

Answer 13

Instead of costs being assessed on the standard basis, the costs are fixed in accordance with Parts 45 and 46 of the CPR.

The provision for indemnity costs for a claimant’s Part 36 offer is replaced with a 35% uplift on the claimant’s fixed recoverable costs.

The stage in which the relevant period of a Part 36 offer expires is the equivalent of Day 22.

Question 14

When can a P36 be accepted?

Answer 14

at any time unless notice has been given of its withdrawal, making the relevant period of 21 days somewhat redundant.

However, there may be adverse costs consequences of late acceptance so it is preferable to keep within the deadline.

Question 15

If either party makes an offer and this is accepted by the other within the relevant period, what must be done?

Answer 15

• the sum must be paid to the accepting party by the offering party within 14 days and, if not, the accepting can enter judgment.
• the accepting party is also entitled to their costs of the proceedings up to the date on which the notice of acceptance is served on the offering party.
• If the parties cannot agree costs, a judge will assess them on the standard basis in multi-track cases, but those on the fast and intermediate tracks will be subject to fixed recoverable costs.

Question 16

If the claimant accepts a defendant’s offer after the relevant period has expired and the parties cannot agree costs, the court will normally order what?

Answer 16

that:

(a) the defendant pays the claimant’s costs up to the date on which the relevant period expired; and

(b) the claimant pays the defendant’s costs thereafter until the date of acceptance.

, the proceedings will be stayed (paused) to allow for the sum offered and the costs, whether fixed or summarily assessed, to be paid.

Question 17

if the defendant accepts the claimant’s offer late, the defendant will usually be ordered to pay what?

Answer 17

the claimant’s costs of the proceedings up to the date of acceptance.

, the proceedings will be stayed (paused) to allow for the sum offered and the costs, whether fixed or summarily assessed, to be paid.