Yozshushura Form NA: Notice of offer to settle Section 1 — Part 36 This will depend on what the offers are and what the judge orders. The costs consequences are different depending on whether the offer was made by the claimant or defendant. Part 36 offers can only be made in respect of appeals from decisions made at trial: Which approach is adopted will depend on the circumstances; in particular, the nature of the counterclaim and nw extent of the legal costs on both sides. Ask a solicitor online now Ask My Question. Get our weekly magazine delivered to your door.
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We are often asked by professional and lay clients to advise on making settlement offers. The level of the offer may be crucial, but so too will be the type of offer. Why make an offer? At the outset, it is helpful to have clearly in mind that there are two distinct purposes for making an offer: to achieve a settlement and resolve the matter, and to obtain costs protection in the event that the offer is not accepted.
Some offers will be made with both purposes equally in mind, and there must always be some overlap — you may be aiming solely for costs protection, but you need to be sure that you can live with the offer being unexpectedly accepted. But some offers will really only be aiming for a resolution for example at, or very close to, trial where is too late to achieve meaningful costs protection whilst others are really only seeking costs protection such as where you think the other side has unrealistic expectations and is unlikely to be interested in what you consider to be a reasonable settlement.
There are particular requirements in certain situations, but in all cases the offer must satisfy the requirements as to form and content prescribed by CPR These requirements must be strictly adhered to: if an offer fails to comply in any respect, it is not a Part 36 Offer and the offeror will not automatically be entitled to the benefits provided for by Part 36 see Mitchell v James  1 WLR , although the court will still have a discretion to take it into account and see Huntley v Simmonds  EWHC QB for a rare example where it made no difference.
Given the importance of compliance, we recommend, particularly to non-lawyers, that any Part 36 Offer be drafted using the precedent form NA. As CPR Different terms are used for offers which are not Part 36 Offers. A Part 36 Offer does not need to be marked in that way because it is treated as such already by CPR However, it is worth remembering that it is possible to make an open offer, rather than one which is without prejudice.
In detailed assessment proceedings, when the paying party serves its Points of Dispute, it is required to paragraph 8. More generally, it is possible to make an open offer of settlement of which the court can then be made aware. It can sometimes be a very effective strategy to make an open offer of settlement and to refer to it in the statement of case: the objective is for the judge to see that the offer has been made, to agree that it is a sensible offer, and to conclude that the offeree must be behaving unreasonably.
Advantages of Part 36 Offers In general terms, for all parties the benefit of an offer being made under Part 36 is that the offer is subject to a series of rules designed to bring certainty; the consequences of the offer will automatic in particular situations, rather than entirely at the discretion of the court albeit that some of the rules do contain provisos leaving the court a tightly circumscribed discretion.
The courts have repeatedly emphasised that Part 36 is a self-contained procedural code, and thus for instance, therefore should be no scope for an argument that making a second offer amounts to an implied withdrawal of a first offer, because a Part 36 Offer can only be withdrawn by the mechanisms prescribed in For a defendant, the great advantage of Part 36 is the protection afforded by For a claimant, there is one particular potential advantage of a Part 36 Offer.
Part There was no dispute that the claimant was entitled to claim the benefits under sub-paragraphs a to c of rule That in turn raised the question of whether the court had the power to order some, but not all, of the consequences in the rule. The Master, having considered similar authorities though none dealing directly with the point in question , concluded that it was open to the court to apply rule She pointed out that if the court had been required to take a global approach to all of those consequences, then the fact that a judge might consider it unjust to make an award only under sub-paragraph d might tip the balance against the claimant receiving any award at all.
Turning to the case in hand, the Master considered that it would be unjust to make an order under rule She also bore in mind the fact that the original costs bill had been significantly reduced on assessment.
The judgement offers welcome insight how the courts will exercise their discretion in making awards following successful claimant Part 36 offers and indicates the kinds of factors they will take into account in doing so. For both parties, a particular situation in which a Part 36 Offer should be considered is where a split trial is to be held. CPR When the first part of the case is decided, if a party has made a Part 36 Offer which deal with only the part of the case which has been decided, the court can be told of the fact and the terms of the offer, so that it can be taken into account in considering what order to make about the costs of the first part of the case.
However, if the Part 36 offer does not only deal with the part of the case which has been decided, the court can be told about the fact of the offer, but not of its terms. Situations in which other offers may be preferable Under By CPR So too, CPR In that case a non-Part 36 Offer could be made but expressed to expire at a stated time and date before the hearing.
The paradigm example of a feature of a Part 36 Offer making it unsuitable for a particular case is the requirement under Two issues spring from that.
If it is concerned that the level of costs could come as a nasty shock, it may prefer to seek to achieve certainty by making an offer which is inclusive of costs. Such an offer achieves certainty if it is accepted, but if it is not accepted, it can be less effective at achieving costs protection: how will the court assess whether or not the claimant has done better than the offer at the end of the trial when it has determined the damages but not the costs?
In Summers v Fairclough Homes  1 WLR the Claimant succeeded on liability in a personal injury claim arising out of an accident at work. We accept the force of that argument. Equally it may be advantageous to make different kinds of offers at different times, or indeed to make alternative offers at the same time. It can for example be a good strategy to make a non-Part 36 offer with a short time limit before a procedural hearing or a mediation, with a view to then making a Part 36 Offer after the hearing or mediation.
Litigants must think carefully about the type of offer they may wish to make, and this should be kept continually under review.
Form N242: Notice of payment into court (Under order - part 37)
However, when treading on Part 36 territory it is vital that practitioners keep an eye on the potential pitfalls, as a misstep can have serious consequences for costs liability or recovery. The starting point in any such discussion is the following key idea: the law of contract has no place in Part This was rejected by the Claimant. This is of course counter intuitive for lawyers who have learnt since their legal education was in its infancy that a rejection of an offer means it is no longer open for acceptance, and that a counteroffer is an implied rejection.
N242A: Offer to settle (Section I – Part 36) | Practical Law
If the claimant does go on to beat the less advantageous offer, Part 36 costs consequences will not apply. Whereas Part 36 is attractive to claimants in all or nothing cases, there is little to be gained by a defendant making a Part 36 offer. However, the Court of Appeal decision was controversial. This case provides a useful example of how to draft a claimant Part 36 letter when you are in fact the named defendant on the Claim Form. In addition, any claimant making an offer should consider providing for future interest. The scheme of Part 36, and the automatic costs consequences that flow from Part 36, mean that a Part 36 offer cannot be inclusive of costs. You should also file a copy of the acceptance with the court.