Calderbank Offers Not To Be Equated To Part 36 In Split Trial Cases

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It is well-established that the existence of a Part 36 Offer in the case of a split hearing displaces the normal presumption that costs will be awarded at the end of the first stage. Instead, in such cases, the normal position is that, save in exceptional circumstances, costs would be reserved.

But what is the position where a Calderbank offer has been made, and the judge is told of its existence? Is the judge, in effect, bound to treat such an offer as equivalent to an offer under CPR 36 and defer a ruling on costs until the conclusion of all stages of the litigation?

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email service

Part 36 Offer | Service By Email Validated But Not Without Consequence

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“I accept that a failure to comply with the rules of service in CPR Part 6 should not be taken lightly … No reason has been put forward by the claimant as to why the rules were not followed. On the other hand, it is clear that the defendants’ solicitors received the Part 36 offer on 15 December 2020. Mr Seitler does not contend otherwise. No complaint was made about the method of service of the Part 36 offer until shortly before the hearing on 3 November. No suggestion has been made that there is any prejudice to the third defendant in the Part 36 offer having been sent by email rather than having been served in some other way, for example by post. In these circumstances, it would in my view be … “a triumph of form over substance” if the court were to make an order invalidating the Part 36 offer…”

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boats colliding

Part 36 Consequences Superseded By Settlement Agreement

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“I am satisfied that the Settlement Agreement was a binding contract that superseded the acceptance of the Offer. This was because on 26 May 2020 the parties chose to conclude a written settlement agreement with fresh wording and an entire agreement clause. Looking at the parties’ fuller wording in the Settlement Agreement, and taking into account that the had been accepted and incorporated by way of an annex, the parties’ objective intention was to provide a fuller settlement agreement, not merely an agreement memorialising the Part 36 Offer

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No Exit

Para 7.12 RTA Protocol | No Interim Payment Without A Stay

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“If a claimant wishes to benefit from the provisions of paragraph 7.13 to 7.22 (and by doing so be paid an interim payment), he or she must obtain a stay under paragraph 7.12. This, to my mind, is the natural reading of the Protocol. It is also entirely understandable why the drafters of the Protocol would wish to restrict a claimant’s ability to seek interim payments under paragraphs 7.13 and 7.18 to certain defined circumstances (namely, those that are set out in paragraph 7.12)…. it must follow that the Claimant wrongly exited the Portal.”

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Genuine attempt to settle

CPR 36.17 | Part 36 Offer To Accept £1 Was A Genuine Attempt To Settle

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The consequences of can be punishing, but it is a separate question whether they are unjust. The justice of Part 36 is that decisions about litigation should be economically utilitarian: it actively discourages litigation on ‘points of principle’ by making litigation not fought on a commercial basis a high stakes activity.

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44% Off

CPR 47.20(3)(b) | Can The Size Of Reduction Save A Bad Offer In Detailed Assessment Proceedings?

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CPR 47.20 provides (so far as is relevant) that …

(1) The receiving party is entitled to the costs of the detailed assessment proceedings except where –

…

(b) the court makes some other order in relation to all or part of the costs of the detailed assessment proceedings.

…

(3) In deciding whether to make some other order, the court must have regard to all the circumstances, including –

…

(b) the amount, if any, by which the bill of costs has been reduced.

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SEABROOK V ADAM

Liability Only Part 36 Offer Ineffective Where Causation In Dispute | Court Of Appeal Decision

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In the course of this personal injury claim the Claimant had made two Offers, to essentially the same effect, namely that he would accept 90% of his claim for damages and interest to be assessed, on the basis that liability was admitted. The Claimant had alleged that he had sustained two distinct injuries as a result of the Defendant’s negligence in the form of whiplash and injury to his lower back. He had claimed damages of approximately £10,000.

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Infinity and beyond

CPR 36.17(4) | Does It Apply To The Costs Of Detailed Assessment?

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CPR 36.17(4) applies where a Claimant beats its own in substantive proceedings bringing with it various rewards including a 10% uplift, enhanced interest and indemnity costs. The question to be addressed in this case was whether it applies equally to the costs of detailed assessment i.e. can you make a valid Offer in respect of the costs of the detailed assessment proceedings and reap those same rewards if it is beaten? In other words, do the the costs of the detailed assessment proceedings, for the purposes of CPR 36.17(4), fall within “any issue that arises in the claim”?

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Consequences

CPR 36.17(4) | Just Consequences | Court Of Appeal Decision

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This Court of Appeal decision concerned the circumstances in which the award to a Claimant who beats its own Offer of some or all of the specified relief under CPR 36.17 may be considered to be unjust.

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Genuine attempt to settle the proceedings

CPR 36.17(4) | Claimant’s Part 36 Offer Which Amounted To 99.7% Of The Claim Was A Genuine Attempt To Settle

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In this case Mr Justice Zacaroli determined that the Claimant’s Offer to settle its claim in the sum of £48,290.00, which amounted to 99.7% of the amount claimed was a genuine offer to settle the proceedings

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