Costs - Part 36 and other settlement offers

Learning Outcomes

After studying this article, you will be able to explain the purpose and requirements of Part 36 offers, identify the cost consequences for both claimants and defendants, and apply the rules to settlement scenarios in civil litigation. You will also understand how Part 36 interacts with other settlement offers and the strategic considerations for making or responding to such offers in the context of the SQE1 exam.

SQE1 Syllabus

For SQE1, you are required to understand the rules and practical implications of Part 36 and other settlement offers. Focus your revision on:

  • The formal requirements for making a valid Part 36 offer under the Civil Procedure Rules.
  • The cost consequences for both parties when a Part 36 offer is accepted, rejected, or not beaten at trial.
  • The strategic use of Part 36 offers and their interaction with other settlement mechanisms.
  • The procedural steps for making, accepting, withdrawing, or varying a Part 36 offer.
  • The distinction between Part 36 offers and other types of settlement offers (e.g., Calderbank offers).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What are the minimum formal requirements for a valid Part 36 offer?
  2. What happens if a claimant beats their own Part 36 offer at trial?
  3. If a defendant makes a Part 36 offer and the claimant fails to obtain a more advantageous judgment, what are the usual cost consequences?
  4. Can a Part 36 offer be withdrawn, and if so, how does this affect costs?

Introduction

Settlement offers play a central role in civil litigation, both as a means to resolve disputes early and as a tactical tool to influence costs. Part 36 of the Civil Procedure Rules (CPR) sets out a structured process for making formal offers to settle, with significant cost consequences if not accepted. Understanding how Part 36 operates, and how it differs from other settlement offers, is essential for SQE1.

Part 36 Offers: Purpose and Requirements

Part 36 offers are designed to encourage parties to settle disputes without the need for a trial. They are a formal, written proposal to resolve all or part of a claim on specified terms, with built-in incentives and penalties relating to costs.

Key Term: Part 36 offer
A formal, written offer to settle made under Part 36 of the Civil Procedure Rules, which carries specific cost consequences if not accepted.

To be valid, a Part 36 offer must:

  • Be in writing.
  • State clearly that it is made pursuant to Part 36.
  • Specify a period of not less than 21 days (the "relevant period") for acceptance with standard cost consequences.
  • State whether it relates to the whole or part of the claim and whether it takes into account any counterclaim.

Key Term: relevant period
The minimum 21-day period specified in a Part 36 offer during which the offeree can accept the offer with standard cost consequences.

Part 36 offers are "without prejudice save as to costs," meaning their terms are not disclosed to the trial judge until after judgment on liability and quantum.

Cost Consequences of Part 36 Offers

The main impact of Part 36 offers is on costs. The rules create a strong incentive to accept reasonable offers and a penalty for failing to do so.

If the Claimant Makes a Part 36 Offer

If the claimant makes a Part 36 offer which the defendant does not accept, and the claimant then obtains a judgment at least as advantageous as their offer, the court will usually order:

  • Interest on damages at up to 10% above base rate from the end of the relevant period.
  • Costs on the indemnity basis from the end of the relevant period.
  • Interest on those costs at up to 10% above base rate.
  • An additional amount (up to 10% of damages, capped at £75,000).

Key Term: indemnity basis
A basis for assessing costs where any doubt is resolved in favour of the receiving party, often resulting in a higher recovery than on the standard basis.

If the Defendant Makes a Part 36 Offer

If the defendant makes a Part 36 offer which is not accepted, and the claimant fails to obtain a more advantageous judgment, the court will usually order:

  • The claimant to pay the defendant's costs from the end of the relevant period.
  • Interest on those costs at up to 10% above base rate.

Acceptance of a Part 36 Offer

If a Part 36 offer is accepted within the relevant period, the offeree is entitled to their costs up to the date of acceptance, assessed on the standard basis.

Key Term: standard basis
A basis for assessing costs where any doubt is resolved in favour of the paying party, and only proportionate and reasonably incurred costs are recoverable.

If accepted after the relevant period, the court may order the offeree to pay the offeror's costs from the end of the relevant period to the date of acceptance.

Withdrawal and Variation

A Part 36 offer can be withdrawn or varied to make it less advantageous, but only by written notice. Withdrawal or variation before the end of the relevant period does not take effect until the period expires, unless the offeree accepts the original offer before expiry. After the relevant period, the offer can be withdrawn or varied at any time.

Key Term: withdrawal of Part 36 offer
The process by which the offeror formally notifies the offeree that the Part 36 offer is withdrawn or changed, affecting its cost consequences.

Strategic Use of Part 36 Offers

Part 36 offers are a powerful tactical tool. Making a realistic offer early can put pressure on the other party and protect your client on costs. Multiple or revised offers can be made as the case develops. Timing, valuation, and clarity are all important.

Worked Example 1.1

A claimant makes a Part 36 offer to settle for £50,000. The defendant rejects the offer. At trial, the claimant is awarded £55,000. What are the likely cost consequences?

Answer: The claimant has beaten their own Part 36 offer. The court will usually award the claimant interest on damages (up to 10% above base rate), indemnity costs from the end of the relevant period, interest on those costs, and an additional sum (up to 10% of damages, capped at £75,000).

Worked Example 1.2

A defendant makes a Part 36 offer of £30,000. The claimant rejects the offer and is awarded £25,000 at trial. What are the likely cost consequences?

Answer: The claimant has failed to beat the defendant's Part 36 offer. The court will usually order the claimant to pay the defendant's costs from the end of the relevant period, plus interest on those costs (up to 10% above base rate).

Other Settlement Offers

Not all settlement offers are made under Part 36. Offers marked "without prejudice save as to costs" (often called Calderbank offers) can be considered by the court when deciding costs, but do not carry the automatic consequences of Part 36.

Key Term: Calderbank offer
An offer to settle made "without prejudice save as to costs," which the court may consider when exercising its discretion on costs, but which does not have the automatic cost consequences of a Part 36 offer.

Interaction with ADR

Part 36 offers can be used alongside mediation or other forms of alternative dispute resolution. Refusal to engage with ADR, especially when a reasonable Part 36 offer has been made, can lead to adverse costs orders.

Exam Warning

If a party unreasonably refuses to accept a Part 36 offer or to participate in ADR, the court may penalise them in costs, even if they are successful at trial. Always advise clients to give clear reasons for any refusal.

Summary Table: Cost Consequences of Part 36 Offers

ScenarioCost Consequences
Claimant beats own Part 36 offer at trialIndemnity costs, enhanced interest, additional sum (up to 10%), from end of relevant period
Claimant fails to beat defendant's Part 36Claimant pays defendant's costs and interest from end of relevant period
Offer accepted within relevant periodOfferee entitled to costs up to acceptance (standard basis)
Offer accepted after relevant periodOfferee pays offeror's costs from end of relevant period to acceptance (court's discretion)

Key Point Checklist

This article has covered the following key knowledge points:

  • Part 36 offers are formal settlement offers with specific cost consequences under the Civil Procedure Rules.
  • A valid Part 36 offer must be in writing, state it is made under Part 36, and specify a relevant period of at least 21 days.
  • If a claimant beats their own Part 36 offer at trial, they may receive indemnity costs, enhanced interest, and an additional sum.
  • If a claimant fails to beat a defendant's Part 36 offer, they may be ordered to pay the defendant's costs and interest from the end of the relevant period.
  • Part 36 offers can be withdrawn or varied, but only by written notice and subject to rules on timing and cost consequences.
  • Calderbank offers are settlement offers outside Part 36, considered at the court's discretion on costs.
  • Refusal to accept a reasonable Part 36 offer or to participate in ADR can result in adverse costs orders.

Key Terms and Concepts

  • Part 36 offer
  • relevant period
  • indemnity basis
  • standard basis
  • withdrawal of Part 36 offer
  • Calderbank offer
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