email service

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

“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…”

boats colliding

Part 36 Consequences Superseded By Settlement Agreement

“I am satisfied that the Settlement Agreement was a binding contract that superseded the acceptance of the Offer.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 Offer

No Exit

Para 7.12 RTA Protocol | No Interim Payment Without A Stay

“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.”

Genuine attempt to settle

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

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.

Unacceptable

CPR 21.10 | Can A Part 36 Offer Be Withdrawn After Acceptance But Before Court Approval?

This case addressed two novel questions:

i) Where a protected party accepts a offer is the other party subsequently able to withdraw that offer before approval of the settlement?

ii) When the court is asked to approve a settlement, on what grounds (if any) can a offer be withdrawn?

SEABROOK V ADAM

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

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.

Infinity and beyond

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

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”?

Consequences

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

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

All inclusive

An Interest Exclusive Part 36 Offer Is Not A Part 36 Offer

Can a which excludes interest be validly made either generally or in the context of detailed assessment proceedings?

It is been an issue on which a number of judges have held diverging views.

In the present case, His Honour Judge Dight CBE, upholding Deputy Master Campbell’s first instance decision, had concluded that an offer exclusive of interest cannot be a valid offer.

In contrast, in a matter we reported in May, Horne v Prescot (No 1) Ltd [2019] EWHC 1322 (QB), Nicol J, dismissing an appeal from Master Nagalingam, held that, at least in the context of detailed assessment proceedings, an offer excluding interest can be an effective offer.

So, what is the answer?

The Just Rewards Of A Good Part 36 Offer

CPR 36.17 And The Just Rewards Of A Good Part 36 Offer

Mr Justice O’Farrell rounded up the authorities on CPR 36.17 and found that a Claimant who had beaten its own of £875,000 by less than £5,000 was nonetheless entitled to the benefits conferred by the rule, including enhanced interest on damages and costs, indemnity costs from 21 days after the date of the offer and an additional amount of £65,123.77.