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Summary Civil Litigation - Offers to Settle Notes
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Civil Litigation Syllabus Notes on Offers to Settle, used in conjunction with The White Book 2020 from BPTC 2019/2020.
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SYLLABUS 16 OFFERS TO SETTLE Calderbank offers and offers to settle under Part 36
Consequences of accepting Part 36 offers
Withdrawing, reducing and increasing offers to settle
Consequences of failing to obtain judgment more advantageous than offer to settle
Know name of “Calderbank”
CPR: Part 36
36.1:
Section I general rules about Part 36 offers.
Section II rules about offers to settle where the parties have followed the RTA Protocol or
the EL/PL Protocol and have started proceedings under PT 8 and PD 8B.
Part 1: Offers to settle
36.2 Scope of this Section
This Section does not apply to an offer to settle to which Section II applies. Nothing here
prevents a party making an offer to settle in whatever way that party chooses, but if the
offer is not made in accordance with r36.5, it will not have the consequences specified in
this section. A Pt 36 offer may be made in respect of the whole or part of or any issue that
arises in—(a) a claim, CC or other additional claim or (b) an appeal or cross-appeal from a
decision made at a trial.
NOTE:
r44.2 requires the court to consider an offer to settle that does not have the costs
consequences set out in this Section in deciding what order to make about costs
r20.2 and 20.3 provide that CCs and other additional claims are treated as claims and
references to a C or D include a party bringing or defending an additional claim.
36.3 Definitions
Offeror= party who makes an offer
Offeree = party to whom an offer is made
Trial = any trial in a case whether a trial of all issues or a trial of liability, quantum or some
other issue
A trial is “in progress” from the time when it starts until the time when judgment is given or
handed down
A case is “decided” when all issues in the case have been determined, whether at one or
more trials
TJ = the judge (if any) allocated in advance to conduct a trial; and
“The relevant period” = (i) in the case of an offer made not less than 21 days before a trial,
the period specified under r36.5(1)(c) or such longer period as the parties agree
(ii) otherwise, the period up to the end of such trial.
36.4 Application of Part 36 to appeals
Except where a Part 36 offer is made in appeal proceedings, it shall have the consequences
set out in this Section only in relation to the costs of the proceedings in respect of which it
, SYLLABUS 16 OFFERS TO SETTLE
is made, and not in relation to the costs of any appeal from a decision in those
proceedings.
Where a Part 36 offer is made in appeal proceedings, references in this Section to a term in
the first column below shall be treated, unless the context requires otherwise, as references
to the corresponding term in the second column—
Term Corresponding term
Claim Appeal
Counterclaim Cross-appeal
Case Appeal proceedings
Claimant Appellant
Defendant Respondent
Trial Appeal hearing
Trial judge Appeal judge
36.5 Form and content of a Part 36 offer
(1) A Part 36 offer MUST-
(a) be in writing;
(b) make clear that it is made pursuant to Part 36;
(c) specify a period of not less than 21 days within which the D will be liable for the C’s
costs in accordance with r36.13 or 36.20 if the offer is accepted;
(d) state whether it relates to the whole of the claim or to part of it or to an issue that
arises in it and if so to which part or issue; and
(e) state whether it takes into account any counterclaim.
(2) Para(c) does not apply if the offer is made less than 21 days before the start of trial.
In appropriate cases, a Part 36 offer must contain such further information as is required by
r36.18 (PI claims for future pecuniary loss), r36.19 (offer to settle a claim for provisional
damages), and r36.22 (deduction of benefits).
A Pt 36 offer which offers to pay or accept a sum of money will be treated as inclusive of all
interest until—
(a) the date on which the period specified under r36.5(c) expires; or
(b) if r36.5(2) applies, a date 21 days after the date the offer was made.
36.6 Part 36 offers—defendant’s offer
Subject to r36.18(3) and 36.19(1), a Part 36 offer by a D to pay a sum of money in settlement
of a claim must be an offer to pay a single sum of money. A D’s offer to pay all or part of the
sum at a date later than 14 days following the date of acceptance will not be treated as a
Part 36 offer unless the offeree accepts the offer. (this means must be payable within 14
days following the date of acceptance unless offeree accepts the offer)
36.7 Time when a Part 36 offer is made
A Part 36 offer may be made at any time, including before the commencement of
proceedings and is made when it is served on the offeree.
36.8 Clarification of a Part 36 offer
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