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18. Settlement
Includes:
- Offers to Settle;
- Clarification, Withdrawing, Changing, and Accepting Offers;
- Cost Consequences;
- Unaccepted Offers;
- Cost Consequences Following Judgement;
- Calderbank Offers
Offers to Settle
Part 36 of the CPR is designed to encourage parties to settle disputes without going to trial.
If the offer is made within the Part 36 parameters, some protections can be afforded to the
offeror as to costs, should the case continue to trial.
This offer may be made at any time and may relate to the whole or part of a claim as
well as any issue arising from the claim, counterclaim, additional claim, or appeal or
cross-appeal.
36.3 The party who makes an ‘offer’ to settle is known as the offeror and the party to whom
the offer is made is known as an ‘offeree’.
The offer is deemed to have been made upon service on the offeree.
The procedures for making a Part 36 offer are as follows:
36.5
(1) A part 36 offer must:
(a) Be in writing;
(b) Make clear that it is pursuant to Part 36;
- A heading ‘PART 36 OFFER’ will suffice.
(c) Specify a date, at least 21 days away, where the defendant is to pay for the
claimant’s costs, if the offer is accepted.
- The exception to this is if the offer is made less that 21 days before the start of the
trial, where payment is due after 21 days or until the end of trial, whichever is first.
(d) State whether the offer relates to the whole or part of the claim, or any issue
arising from it, and which part or issue.
(e) State whether it takes into account any counterclaim;
(4) Any part 36 offer, offering to pay for or offering to accept a sum of money, the sum will be
treated as inclusive of all interest until:
(a) The expiration of the date specified under (1)(c); or
(b) If the offer is made less than 21 days before the trial, the date 21 days after the
offer is made.
- Interest is, therefore, compulsory to a Part 36 offer. Exclusion of this will make the offer
non-complaint*.
*The 36.5 requirements are mandatory and, if an offer does not comply with the
requirements, the offer will be deemed non-complaint and not attract the usual Part
(5) If the
36 offeror wishes to include interest beyond the date specified under (4), they must
protections.
specify this, or the interest will only accrue until acceptance.
, - The offer will be treated as a Calderbank offer, which means it will still be
taken into account in Part 44 (costs).
Defendant’s Offer
36.6 A Part 36 offer by a defendant to pay a sum of money must be an offer to
pay it in a single (lump) sum.
- The offer to pay cannot be proposed to be on a date later than 14 days
following Claimant’s acceptance. If this is the case, it will not be a Part 36 offer.
In Ali v Channel 5 (2018), it was made clear that a defendant may offer a joint sum to
joint defendants (or vise versa), if the claims arose from the same set of facts, even if
the two grounds for claim differ.
Clarification, Withdrawing, Changing, and Accepting an Offer
Clarification
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