[F1PART 36E+WOFFERS TO SETTLE

Textual Amendments

SECTION IE+WPart 36 Offers to Settle

ACCEPTING OFFERSE+W

Acceptance of a Part 36 offerE+W

36.11.—(1) A Part 36 offer is accepted by serving written notice of acceptance on the offeror.

(2) Subject to paragraphs (3) and (4) and to rule 36.12, a Part 36 offer may be accepted at any time (whether or not the offeree has subsequently made a different offer), unless it has already been withdrawn.

(Rule 21.10 deals with compromise, etc. by or on behalf of a child or protected party.)

(Rules 36.9 and 36.10 deal with withdrawal of Part 36 offers.)

(3) The court’s permission is required to accept a Part 36 offer where—

(a)rule 36.15(4) applies;

(b)rule [F236.20] (3)(b) applies, the relevant period has expired and further deductible amounts have been paid to the claimant since the date of the offer;

(c)an apportionment is required under rule 41.3A; or

(d)a trial is in progress.

(Rule 36.15 deals with offers by some but not all of multiple defendants.)

(Rule [F336.20] defines “deductible amounts”.)

(Rule 41.3A requires an apportionment in proceedings under the Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934.)

(4) Where the court gives permission under paragraph (3), unless all the parties have agreed costs, the court must make an order dealing with costs, and may order that the costs consequences set out in rule 36.13 apply.

Textual Amendments

F2Word in rule 36.11(3)(b) substituted (1.10.2023) by The Civil Procedure (Amendment No. 2) Rules 2023 (S.I. 2023/572), rules 1(1), 12(5)(a) (with rule 2)

Acceptance of a Part 36 offer in a split-trial caseE+W

36.12.—(1) This rule applies in any case where there has been a trial but the case has not been decided within the meaning of rule 36.3.

(2) Any Part 36 offer which relates only to parts of the claim or issues that have already been decided can no longer be accepted.

(3) Subject to paragraph (2) and unless the parties agree, any other Part 36 offer cannot be accepted earlier than 7 clear days after judgment is given or handed down in such trial.

Costs consequences of acceptance of a Part 36 offerE+W

36.13.—(1) Subject to paragraphs (2) and (4) and to rule [F436.23], where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings (including their recoverable pre-action costs) up to the date on which notice of acceptance was served on the offeror.

F5...

(2) Where—

(a)a defendant’s Part 36 offer relates to part only of the claim; and

(b)at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim,

the claimant will only be entitled to the costs of such part of the claim unless the court orders otherwise.

(3) Except where the recoverable costs are fixed by these Rules, costs under paragraphs (1) and (2) are to be assessed on the standard basis if the amount of costs is not agreed.

(Rule 44.3(2) explains the standard basis for the assessment of costs.)

(Rule 44.9 contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007.)

(Part 45 provides for fixed costs in certain classes of case.)

(4) Where—

(a)a Part 36 offer which was made less than 21 days before the start of a trial is accepted; or

(b)a Part 36 offer which relates to the whole of the claim is accepted after expiry of the relevant period; or

(c)subject to paragraph (2), a Part 36 offer which does not relate to the whole of the claim is accepted at any time,

the liability for costs must be determined by the court unless the parties have agreed the costs.

(5) Where paragraph (4)(b) applies but the parties cannot agree the liability for costs, the court must, unless it considers it unjust to do so, order that—

(a)the claimant be awarded costs up to the date on which the relevant period expired; and

(b)the offeree do pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.

(6) In considering whether it would be unjust to make the orders specified in paragraph (5), the court must take into account all the circumstances of the case including the matters listed in rule 36.17(5).

(7) The claimant’s costs include any costs incurred in dealing with the defendant’s counterclaim if the Part 36 offer states that it takes it into account.

Textual Amendments

F4Word in rule 36.13 substituted (1.10.2023 immediately after S.I. 2023/572 comes into force) by The Civil Procedure (Amendment No. 3) Rules 2023 (S.I. 2023/788), rules 1(1), 19(2)

F5Words in rule 36.13 omitted (1.10.2023) by virtue of The Civil Procedure (Amendment No. 2) Rules 2023 (S.I. 2023/572), rules 1(1), 12(6) (with rule 2)

Other effects of acceptance of a Part 36 offerE+W

36.14.—(1) If a Part 36 offer is accepted, the claim will be stayed.

(2) In the case of acceptance of a Part 36 offer which relates to the whole claim, the stay will be upon the terms of the offer.

(3) If a Part 36 offer which relates to part only of the claim is accepted, the claim will be stayed as to that part upon the terms of the offer.

(4) If the approval of the court is required before a settlement can be binding, any stay which would otherwise arise on the acceptance of a Part 36 offer will take effect only when that approval has been given.

(5) Any stay arising under this rule will not affect the power of the court—

(a)to enforce the terms of a Part 36 offer; or

(b)to deal with any question of costs (including interest on costs) relating to the proceedings.

(6) Unless the parties agree otherwise in writing, where a Part 36 offer that is or includes an offer to pay or accept a single sum of money is accepted, that sum must be paid to the claimant within 14 days of the date of—

(a)acceptance; or

(b)the order when the court makes an order under rule 41.2 (order for an award of provisional damages) or rule 41.8 (order for an award of periodical payments), unless the court orders otherwise.

(7) If such sum is not paid within 14 days of acceptance of the offer, or such other period as has been agreed, the claimant may enter judgment for the unpaid sum.

(8) Where—

(a)a Part 36 offer (or part of a Part 36 offer) which is not an offer to which paragraph (6) applies is accepted; and

(b)a party alleges that the other party has not honoured the terms of the offer,

that party may apply to enforce the terms of the offer without the need for a new claim.

Acceptance of a Part 36 offer made by one or more, but not all, defendantsE+W

36.15.—(1) This rule applies where the claimant wishes to accept a Part 36 offer made by one or more, but not all, of a number of defendants.

(2) If the defendants are sued jointly or in the alternative, the claimant may accept the offer if—

(a)the claimant discontinues the claim against those defendants who have not made the offer; and

(b)those defendants give written consent to the acceptance of the offer.

(3) If the claimant alleges that the defendants have a several liability(GL) to the claimant, the claimant may—

(a)accept the offer; and

(b)continue with the claims against the other defendants if entitled to do so.

(4) In all other cases the claimant must apply to the court for permission to accept the Part 36 offer.]