Unit 13 - Part 36 Offers Flashcards Preview

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Flashcards in Unit 13 - Part 36 Offers Deck (46)
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Can parties make offers not in accordance with Part 36?

Yes, but it won't have the consequences specified in Part 36.


Part 36 offers can be made for issues that arise in



Additional claims


Cross appeals


What is a Calderbank offer?

A Calderbank offer is made by letter written “without prejudice save as to costs” or “without prejudice” but subject to an express reservation of the right to refer to the letter on the issue of costs should the claim proceed to judgment.


If there a formal/technical defects to Part 36 offer, can usual consequences flow?

If there is no real uncertainty or prejudice to the offeree.


Will fundamental defects preclude an offer being treated as a Part 36 offer?



Do Part 36 offers have consqeuences relating to costs of appeals to those decisions?

Only if the offer is made in the appeal proceedings.


Must a Part 36 offer be in writing?



Must a Part 36 offer make clear that it is made pursuant to Part 36?



Must a Part 36 offer specifiy a period within which D will be liable for C's costs if offer is accepted?

Yes, but the period must not be less than 21 days (unless less than 21 days to start of trial)


Must a Part 36 offer state whether it relates to whole claim, or part of claim?



A defendant's offer that includes an offer to pay all/part of the sum at a date later than 13 days following acceptance will NOT be treated as a Part 36 offer unless...

...the offeree accepts the offer.


When can a part 36 offer be made?

Any time, including before commencement of proceedings.


When is a Part 36 offer considered made?

When served on the offeree.


Can an offeree request clarifications on the offer?

Yes, within 7 days of the offer being made.


TRUE or FALSE. A Part 36 offer can always be withdrawn/changed at any time.

FALSE. Only if offeree has not previously served notice of acceptance.


How does an offeror withdraw/change terms of offer?

By serving written notice of the withdrawal/change of terms on offeree.


Can an offeror withdraw/chane terms without permission of the court?

Yes, after the relevant expiry period.


Can an offer be automatically withdrawn, in accordance with its terms?



If a Part 36 offer is changed to be more favourable to the offeree, is this a withdrawal of the old offer?

No, it is a new offer on improved terms.


What happens if offeror withdraws offer but offeree has already accepted?

The acceptance has effect, unless offeror applies to court for permission to withdraw/change terms within 7 days of acceptance OR before trial, if earlier.


When will the court give permission to withdraw an offer post-acceptance?

If satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.


Generally, what costs is a claimant entitled to in relation to Part 36 offers?

Costs of proceedings up to the date upon which noticeo f acceptance was served on offeror.


What happens to the claim, once a Pt 36 offer is accepted?

Stayed (in relation to parts to which offer relates)


When must sums agreed under Part 36 be paid by?

14 days of acceptance, unless another period is agreed.


Where C wants to accept a Pt 36 offer made by some but not all defendants, when can they accept it?

If D sued jointly: If C discontinues claim against D who has not made offer + they consent to acceptance of offer.

If D sued severally, C can accept offer and continue claims against the other Ds.


TRUE or FALSE. A Pt 36 offer will be treated as "without prejudice except as to costs".



Can the acceptance/terms of Pt 36 offer be communicated to trial judge?

Not until case has been decided, unless:

(a) where the defence of tender before claim has been raised;

(b) where the proceedings have been stayed under rule 36.14 following acceptance of a Part 36 offer;

(c) where the offeror and the offeree agree in writing that it should not apply; or

(d) where, although the case has not been decided—

(i) any part of, or issue in, the case has been decided; and
(ii) the Part 36 offer relates only to parts or issues that have been decided.


When does rule 36.17 apply?

Where C fails to obtain a judgment more advantageous than D's Pt 36 offer; or

Judgment against D is at least as advantageous to C as the proposals in C's Pt 36 offer.


When 36.17 applies, the court must (unless unjust) order that D is entitled to:

(a) costs (including any recoverable pre-action costs) from the date on which the relevant period expired; and

(b) interest on those costs.


Where 36.17 applies, the court must (unless unjust) order that C is eneitled to:

(a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

(b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;

(c) interest on those costs at a rate not exceeding 10% above base rate; and

(d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is—
(i) the sum awarded to the claimant by the court; or
(ii) where there is no monetary award, the sum awarded to the claimant by the court in respect of costs—