CPR Part 36 – The new rules

Published April 2, 2015 by

We are fast approaching yet another change in the rules – this time it is concentrating on CPR Part 36 and The new rules, the most extensive and significant amendments to this rule in 15 years.

All offers made on or after 6th April 2015 will be subject to the changes which are summarised
below :-

Time Limited Offers / Withdrawal of Offers

The new rules CPR 36.9 (4) (b) allow an offer to be automatically withdrawn after the expiry of the time limit contained within the Part 36 offer, this will need to be expressly stated when making the offer

High Offers / Costs Consequences

CPR 36.17 (5) provides for the Court to consider when reaching a decision regarding costs “whether the offer was a genuine offer to settle proceedings”. This is to prevent tactical offers to secure a costs advantage i.e. the Claimant making offers to settle for either the entire amount or a high percentage of their claim. However, the Court will be allowed flexibility in determining whether an offer was a genuine attempt to settle when deciding Part 36 costs consequences.

Costs Budgets

If a party fails to file a budget under the old rules they would only be entitled to Court fees (remember Mitchell)? Under the new Rules CPR36.23 things are slightly less severe in that you are still entitled to 50% of recoverable costs

Improved Offers

CPR 36.9 (5) If there are changes to an offer that make it beneficial for the opponent it will be treated as a new offer rather than a withdrawal of the original offer. This will enable the costs consequences of the original offer to remain.

Split Trials / Disclosure of Part 36 Offers

Currently Part 36 offers cannot be revealed to a Judge until the case has been decided. Under the new rules CPR 36.16 the Judge is allowed to be informed of a Part 36 Offer (although not the terms of such offer ) after Judgment has been given on the preliminary issues. Should the offer relate to issues decided at the preliminary hearing those terms can then be disclosed.
Notwithstanding the new rules coming into effect on offers made on or after 6th April, the rules relating to split trial cases will apply where the split trial starts on or after 6th April regardless of whether any offer was made before that date.

Counterclaims

The new rules CPR 36.9 (5) state that a Part 36 Offer can be made in respect of a claim, counterclaim or any additional claims.

Appeals

Under the new rules a Part 36 Offer can be made in appeal proceedings and the Claimant and Defendant shall be known as Appellant and Respondent.
CPR 20.2 and 20.3 state that any Counterclaims have equal status to Claims

Late Acceptance

At present if an offer is accepted late then the Court will usually order that the delaying party bear the costs for the delaying period. New Rules CPR 36.14 (5) state that the Court must make the usual order but not if it should be unjust to do so. This means that they must apply the same criteria used when a Part 36 offer is not beaten at trial.

I do hope that you have found the above of some use. Should you require any further advice or assistance then please do not hesitate to contact us.