24th Oct 2011 | Articles

Daniel Tivadar looks at part 36 offers in the following article.


Introduction

1. Part 36 offers constitute an essential weapon in litigation armoury. Claimants’ costs often far exceed the amount of damages at stake, especially in road trafficlitigation –whether in the context of credit hire or personal injury–where oftenclaimants’ representatives work under a conditional fee agreement.

2. Settlement offers can be made outside the Part 36 regime: e.g. offers made “without prejudice save as to cost” (Calderbankletters). These are contractual offers that the Court would take into account when exercising its discretionas to costs under CPR r. 44.3. They will, however, not attract the consequences of a Part 36 offer. Note that offers made“without prejudice” do not protect a party’s position on costs.

3. Part 36 offers can be made even before issue. The earlier an offer is made the more protection itmay provideon costs.

4. A party can make a Part 36 offer on claims, counterclaims, additionalclaims, partsof a claim, on the issue of liability or on appeal.

Form and content

5. The offer must comply with the relevant formal requirements to be a Part 36 offer. All offers must comply with the requirements set out in CPR r. 36.2 and there are additional requirements in certain cases; e.g. PI cases with provisional damages, CRU issuesetc.

6. An offer which itself is time-barred cannot be a Pt 36 offer C v D [2010] EWHC 2940 (Ch)principle affirmed in Court of Appeal [2011] EWCA Civ 646.However, the Courts will seek to construe an offer that the offeror calls a “Part 36 offer” in a way that is compatible with it actually being a Part 36 offer –C v D.

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