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Part 36 Orders

Speaker: Alex Adamou
Chambers: 33 Bedford Row

Part 36 Orders
Alex Adamou
33 Bedford Row

This seminar will cover

The application for permission to accept the offer must:
(1) state:
a) the net amount offered in the Part 36 offer;
b) the deductible amounts that had accrued at the date the offer was made; and
c) the deductible amounts that have subsequently accrued; and
(2) be accompanied by a copy of the current certificate.

Not the only way to make an offer

Rule 36.2(2) preserves the right to make a settlement offer by way of a so-called Calderbank letter “without prejudice”

Rule 36.1(1) asserts that Pt 36 “contains a self-contained procedural code”, thereby codifying statements to that effect made by the Court of Appeal

The Interplay between Calderbank and Part 36 Offers

DB UK Bank Ltd v Jacobs Solicitors [2016] EWHC 1614 (Ch); [2016] 4 W.L.R. 184, Ch D, in which Andrew Hochhauser QC held that an initial common-law offer had been impliedly rejected by the making of a subsequent Part 36 offer.

Part 36 does not apply to small claims; see r.27.2(1)(g). but —Rule 36.2(3)(a) now clarifies that Part 36 offers can be made in respect of counterclaims and other additional claims. This was always the case (see AF v BG [2009] EWCA Civ 757; [2009] All E.R. (D) 249; [2010] 2 Costs L.R. 164, CA

Procedural of technical faults

In spite of the wording of r.36.2(2) it has been held that if there are formal or technical defects to a Part 36 offer, provided they cause no real uncertainty or other prejudice to the offeree, the court may order that the usual Pt 36 costs consequences will follow. See Huntley v Simmonds [2009] EWHC 406 (QB) (Underhill J)

Form and Content
Rule 36.5 and where appropriate contain the information set out in 36.18 (PI claims for future pecuniary loss) by r.36.19 (offer to settle a claim for provisional damages) and by r.36.22 (deduction of benefits).

The offer must “make clear that it is made pursuant to Part 36”. Before 6 April 2015, the equivalent rule stated that the offer must “state on its face that it is intended to have the consequences of Section I of Part 36”. This Can be as simple as heading the offer “Part 36 Offer”

Late offers

The general rule is that Part 36 offers should be made at least 21 days before the start of a trial. Offers can be made later but several consequences flow:
r.36.5(2) removes the obligation to specify a period of at least 21 days pursuant to r.36.5(1)(c);

Consequences following Judgement

Rule 36.17.

The comparison in money terms is made at the date of judgment. Accordingly, a judgment in a foreign currency falls to be converted to sterling at the exchange rate applicable at judgment: Barnett v Creggy [2015] EWHC 1316 (Ch) (David Richards J) and Novus Aviation Ltd v Alubaf Arab International Bank [2016] EWHC 1937 (Comm); [2016] 4 Costs L.R. 705, Comm (Leggatt J).

Multiple Defendants

See rule 36.15 and Townsend v Stone Toms and Partners [1981] 1 W.L.R. 1153; [1981] 2 All E.R. 690, CA,

Unaccepted offers and disclosure are dealt with in rule 36.16.

Generally—The general rule remains that the fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the “trial judge” until the case has been “decided” (r.36.16(2)). A trial judge includes the judge (if any) allocated in advance to conduct the trial (r.36.3(f)). A case is “decided” when all issues in the case have been determined, whether at one or more trials (r.36.3(e)).