Civil Litigation SGS 15 Part 36 Offers, Stays and Discontinuance

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billsykes
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209840
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Civil Litigation SGS 15 Part 36 Offers, Stays and Discontinuance
Updated:
2013-03-27 11:43:25
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Civil Litigation
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Civil Litigation
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  1. What is a Part 36 Offer?
    Its an offer to settle (with bite).

    Carries financial incentives to accept.

    Financial punishment for unreasonable refusal to accept offer.
  2. What are the formalities for making a Part 36 offer?
    Must:

    be in writing

    state it is intended to have effect of Part 36

    state the relevant period

    state if it relates to whole or part of claim

    state if it takes into account any counter claim
  3. When can a Part 36 offer be made?
    At any time

    Before proceedings and during trial
  4. When is a Part 36 offer deemed to be 'made' to another party?
    When it is served on the offeree
  5. What is the relevant period?
    A specific time period in which a party must decide if they are to accept a part 36 offer.

    At least 21 days.
  6. Why is a Part 36 offer useful?
    Making a Part 36 offer provides a means of putting pressure on the other side to settle a case and of protecting, to some extent, the client's position on costs.
  7. How do you withdraw a Part 36 offer?
    Depends if it is before or after the expiry of the relevant period:

    BEFORE: Can withdraw/change terms only with the courts permission

    AFTER: Can withdraw/change terms without the courts permission, providing no notice of acceptance has been received
  8. What do you do if you want to clarify the terms of a Part 36 offer?
    Offeree makes a request for clarification:

    Request must be within 7 days of the offer being made.

    If no clarification is provided after 7 further days, offeree can apply to court for direction
  9. What is a stay in proceedings?
    Pressing the pause button on proceedings.

    Halts proceedings. Can be lifted to continue proceedings.
  10. Can the court stay all or part of the proceedings?
    Both!
  11. What grounds are there for a stay to be ordered?
    Automatic stay: nothing has happened for 6 months

    Request for stay: (e.g.) a party wants to try and settle
  12. What is discontinuance?
    A claimant can discontinue all or part of a claim at any time.
  13. Is the court's permission needed for a discontinuance?
    Generally, no.

    Yes, if: an interim injunction has been granted, more than one defendant, etc.
  14. Frank drove into the rear of Sally’s stationary vehicle, causing serious injuries to Sally. Frank has offered £15,000 in settlement of the claim. Sally has not yet issued proceedings.

    Which of the following statements are WRONG?

    (i) In order to be treated as a formal Part 36 offer which is taken into account on costs, the offer must include an offer to pay Sally’s costs incurred up to the date of the offer.

    (ii) In order to be a formal Part 36 offer which is taken into account on costs, the offer must specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs if the offer is accepted.

    (iii) In order to be a formal Part 36 offer which is taken into account on costs, the offer must state whether it relates to the whole of the claim or to part of it.

    (iv) After proceedings have begun, Sally can only accept the offer with the court’s permission. Select ONE of the following:

    [A] (i) and (ii)

    [B] (ii) and (iii) 

    [C] (iii) and (iv)

    [D] (i) and (iv)
    [D] (i) and (iv)

    [[D] is WRONG and therefore the CORRECT answer. Statements (i) and (iv) are wrong: statement

    (i) is wrong - the Claimant will be entitled to the costs of the proceedings up to the date on which notice of acceptance was served and not up to the date of the offer (see r.36.2(2)(c) and r.36.10(1)),

    statement (iv) is wrong as the court's permission is only needed to accept the offer in the circumstances set out in r.36.9(3)].

    statement (ii) is correct (see r.36.2(2)(c)), statement (iii) is correct (see r. 36.2(2)(d))
  15. Gladbury Health Authority have recently, just after serving their defence, made a Part 36 offer in respect of proceedings that have been issued against them by Herbert for damages for medical negligence.

    Which ONE of the following statements is WRONG?

    [A] If Herbert accepts the offer not later than 21 days after the offer was made, he will be entitled to the costs of the proceedings up to the date of serving notice of acceptance.

    [B] If Herbert accepts the offer more than 21 days after the offer was made, the court will make an order on costs unless the parties agree liability for costs. 

    [C] If Herbert does not accept the offer and he fails to better it at trial he will, unless that would be unjust, be liable to pay any costs incurred by Gladbury Health Authority from the date on which the relevant period expired and interest on those costs.

    [D] If Herbert rejects the offer, he can disclose to the trial judge the fact that Gladbury has made an offer, so that the judge can take this into account on the issue of liability.
    [D] If Herbert rejects the offer, he can disclose to the trial judge the fact that Gladbury has made an offer, so that the judge can take this into account on the issue of liability.

    [[D] is WRONG and therefore the CORRECT answer. The offer must not be communicated to the trial judge until the case has been decided. See r.36.13.]
  16. Assume that a month before trial Herbert, in his proceedings against Gladbury, made a Part 36 offer to Gladbury proposing that Gladbury pays £15,000 in settlement of the claim. Gladbury reject this offer and the claim proceeds to trial, where judgment is given for Herbert in the sum of £20,000.

    Which ONE of the following CORRECTLY states the consequences of Gladbury’s rejection of Herbert’s offer?

    [A] Their rejection of the offer will have no effect because Herbert has been awarded more than his offer.

    [B] As he has been awarded more than his offer, Herbert will be entitled to the costs of the case from the date his offer was served on Gladbury.

    [C] As he has been awarded more than his offer, Herbert will be entitled to interest on the damages, indemnity costs and interest on those costs from the date his offer was served on Gladbury.

    [D] As he has won at trial and been awarded more than his offer, the court is likely to order Gladbury to pay Herbert’s costs and, unless it considers it unjust to do so, order Gladbury to pay interest on the damages, and costs on the indemnity basis (and interest on those costs) from the date on which the relevant period expired.
    [D] As he has won at trial and been awarded more than his offer, the court is likely to order Gladbury to pay Herbert’s costs and, unless it considers it unjust to do so, order Gladbury to pay interest on the damages, and costs on the indemnity basis (and interest on those costs) from the date on which the relevant period expired.

    [[D] is CORRECT. See r.36.14(1)(b) and (3) and r.44.3(2).]
  17. In which of the following scenarios will permission of the court be required to discontinue all or part of a claim?

    (i) Where the claim has been amended.

    (ii) Where the court has granted an interim injunction.

    (iii) Where there is more than one Defendant.

    (iv) Where there is more than one Claimant and the others will not give their consent in writing.

    Select ONE of the following:
    [A] (ii) and (iv) only. 
    [B] (iv) only.
    [C] (ii), (iii) and (iv) only.
    [D] All of them.
    [A] (ii) and (iv) only.

    • [[A] is CORRECT.
    • Scenario (i) does not require permission to discontinue.
    • Scenario (ii) does require permission (see CPR r.38.2 (2) (a) (i)).
    • Scenario (iii) does not require permission.
    • Scenario (iv) does require permission (see CPR r.38.2 (2) (c)).]
  18. In relation to the court’s power to stay proceedings, which ONE of the following statements is WRONG?

    [A] The court has the power to stay only part of the proceedings. 

    [B] The court has no power to stay proceedings until the claimant agrees to a medical examination by the defendant’s medical experts.

    [C] Proceedings are automatically stayed 6 months after the time for filing the defence, if the defendant fails to serve or file an admission, defence or counterclaim and the claimant has not sought default judgment or summary judgment. 

    [D] A party can request a stay when filing the allocation questionnaire in order to try to settle the case.
    [B] The court has no power to stay proceedings until the claimant agrees to a medical examination by the defendant’s medical experts.

    [[B] is WRONG and therefore the CORRECT answer. The court does have the power under r.3.1 (2)(f) to order a stay in these circumstances. The decision whether to grant a stay involves the exercise of the court’s discretion. See the editorial note in Volume 1 of White Book 2012 at 3.1.7.1.]

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