Statutory Instruments 1998 No. 3132 (L. 17)
The Civil Procedure Rules 1998
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Time for acceptance of a defendant's Part 36 offer or Part 36 payment
     36.11  - (1) A claimant may accept a Part 36 offer or a Part 36 payment made not less than 21 days before the start of the trial without needing the court's permission if he gives the defendant written notice of acceptance not later than 21 days after the offer or payment was made.

(Rule 36.13 sets out the costs consequences of accepting a defendant's offer or payment without needing the permission of the court)

    (2) If - 

    (3) Where the permission of the court is needed under paragraph (2) the court will, if it gives permission, make an order as to costs.

Time for acceptance of a claimant's Part 36 offer
    
36.12  - (1) A defendant may accept a Part 36 offer made not less than 21 days before the start of the trial without needing the court's permission if he gives the claimant written notice of acceptance not later than 21 days after the offer was made.

(Rule 36.14 sets out the costs consequences of accepting a claimant's offer without needing the permission of the court)

    (2) If - 

    (3) Where the permission of the court is needed under paragraph (2) the court will, if it gives permission, make an order as to costs.

Costs consequences of acceptance of a defendant's Part 36 offer or Part 36 payment
    
36.13  - (1) Where a Part 36 offer or a Part 36 payment is accepted without needing the permission of the court the claimant will be entitled to his costs of the proceedings up to the date of serving notice of acceptance.

    (2) Where - 

the claimant will be entitled to his costs of the proceedings up to the date of serving notice of acceptance, unless the court orders otherwise.

    (3) The claimant's costs include any costs attributable to the defendant's counterclaim if the Part 36 offer or the Part 36 payment notice states that it takes into account the counterclaim.

    (4) Costs under this rule will be payable on the standard basis if not agreed.

Costs consequences of acceptance of a claimant's Part 36 offer
    
36.14 Where a claimant's Part 36 offer is accepted without needing the permission of the court the claimant will be entitled to his costs of the proceedings up to the date upon which the defendant serves notice of acceptance.

The effect of acceptance of a Part 36 offer or a Part 36 payment
    
36.15  - (1) If a Part 36 offer or Part 36 payment relates to the whole claim and is accepted, the claim will be stayed(GL).

    (2) In the case of acceptance of a Part 36 offer which relates to the whole claim - 

    (3) If a Part 36 offer or a Part 36 payment which relates to part only of the claim is accepted - 

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

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

    (6) Where - 

Payment out of a sum in court on the acceptance of a Part 36 payment
    
36.16 Where a Part 36 payment is accepted the claimant obtains payment out of the sum in court by making a request for payment in the practice form.

Acceptance of a Part 36 offer or a Part 36 payment made by one or more, but not all, defendants
    
36.17  - (1) This rule applies where the claimant wishes to accept a Part 36 offer or a Part 36 payment 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 or payment without needing the permission of the court in accordance with rule 36.11(1) if - 

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

    (4) In all other cases the claimant must apply to the court for - 

Other cases where a court order is required to enable acceptance of a Part 36 offer or a Part 36 payment
    
36.18  - (1) Where a Part 36 offer or a Part 36 payment is made in proceedings to which rule 21.10 applies - 

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

    (2) Where the court gives a claimant permission to accept a Part 36 offer or payment after the trial has started - 

    (3) Where a claimant accepts a Part 36 payment after a defence of tender before claim(GL) has been put forward by the defendant, the money in court may be paid out only after an order of the court.

(Rule 37.3 requires a defendant who wishes to rely on a defence of tender before claim(GL) to make a payment into court)

Restriction on disclosure of a Part 36 offer or a Part 36 payment
    
36.19  - (1) A Part 36 offer will be treated as "without prejudice(GL) except as to costs".

    (2) The fact that a Part 36 payment has been made shall not be communicated to the trial judge until all questions of liability and the amount of money to be awarded have been decided.

    (3) Paragraph (2) does not apply - 

Costs consequences where claimant fails to do better than a Part 36 offer or a Part 36 payment
    
36.20  - (1) This rule applies where at trial a claimant - 

    (2) Unless it considers it unjust to do so, the court will order the claimant to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without needing the permission of the court.

(Rule 36.11 sets out the time for acceptance of a defendant's Part 36 offer or Part 36 payment)

Costs and other consequences where claimant does better than he proposed in his Part 36 offer
    
36.21  - (1) This rule applies where at trial - 

than the proposals contained in a claimant's Part 36 offer.

    (2) The court may order interest on the whole or part of any sum of money (excluding interest) awarded to the claimant at a rate not exceeding 10% above base rate (GL) for some or all of the period starting with the latest date on which the defendant could have accepted the offer without needing the permission of the court.

    (3) The court may also order that the claimant is entitled to - 

    (4) Where this rule applies, the court will make the orders referred to in paragraphs (2) and (3) unless it considers it unjust to do so.

(Rule 36.12 sets out the latest date when the defendant could have accepted the offer)

    (5) In considering whether it would be unjust to make the orders referred to in paragraphs (2) and (3) above, the court will take into account all the circumstances of the case including - 

    (6) The power of the court under this rule is in addition to any other power it may have to award interest.

Interest
    
36.22  - (1) Unless - 

indicates to the contrary, any such offer or payment will be treated as inclusive of all interest until the last date on which it could be accepted without needing the permission of the court.

    (2) Where a claimant's Part 36 offer or Part 36 payment notice is expressed not to be inclusive of interest, the offer or notice must state - 

Deduction of benefits
    
36.23  - (1) This rule applies where a payment to a claimant following acceptance of a Part 36 offer or Part 36 payment into court would be a compensation payment as defined in section 1 of the Social Security (Recovery of Benefits) Act 1997[45].

    (2) A defendant to a money claim may make an offer to settle the claim which will have the consequences set out in this Part, without making a Part 36 payment if - 

    (a) at the time he makes the offer he has applied for, but not received, a certificate of recoverable benefit; and

    (b) he makes a Part 36 payment not more than 7 days after he receives the certificate.

(Section 1 of the 1997 Act defines "recoverable benefit")

    (3) A Part 36 payment notice must state - 

    (a) the amount of gross compensation;

    (b) the name and amount of any benefit by which that gross amount is reduced in accordance with section 8 and Schedule 2 to the 1997 Act; and

    (c) that the sum paid in is the net amount after deduction of the amount of benefit.

    (4) For the purposes of rule 36.20, a claimant fails to better a Part 36 payment if he fails to obtain judgment for more than the gross sum specified in the Part 36 payment notice.

    (5) Where - 

    (a) a Part 36 payment has been made; and

    (b) application is made for the money remaining in court to be paid out,

the court may treat the money in court as being reduced by a sum equivalent to any further recoverable benefits paid to the claimant since the date of payment into court and may direct payment out accordingly.



PART 37

MISCELLANEOUS PROVISIONS ABOUT PAYMENTS INTO COURT




Contents of this Part
Money paid into court under a court order - general Rule 37.1
Money paid into court may be treated as a Part 36 payment Rule 37.2
Money paid into court where defendant wishes to rely on defence of tender before claim Rule 37.3
Proceedings under Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934 - apportionment by court Rule 37.4

Money paid into court under a court order - general
     37.1  - (1) When a party makes a payment into court under a court order, the court will give notice of the payment to every other party.

    (2) Money paid into court under a court order may not be paid out without the court's permission except where - 

    (a) the defendant treats the money as a Part 36 payment under rule 37.2; and

    (b) the claimant accepts the Part 36 payment without needing the permission of the court.

(Rule 36.11 sets out when the claimant can accept a Part 36 payment without needing the permission of the court)

Money paid into court may be treated as a Part 36 payment
    
37.2  - (1) Where a defendant makes a payment into court following an order made under rule 3.1(3) or 3.1(5) he may choose to treat the whole or any part of the money paid into court as a Part 36 payment.

(Rule 36.2 defines a Part 36 payment)

    (2) To do this he must file a Part 36 payment notice.

(Rule 36.6 sets out what a Part 36 payment notice must contain and provides for the court to serve it on the other parties)

    (3) If he does so Part 36 applies to the money as if he had paid it into court as a Part 36 payment.

Money paid into court where defendant wishes to rely on defence of tender before claim
    
37.3  - (1) Where a defendant wishes to rely on a defence of tender before claim(GL) he must make a payment into court of the amount he says was tendered.

    (2) If the defendant does not make a payment in accordance with paragraph (1) the defence of tender before claim(GL) will not be available to him until he does so.

    (3) Where the defendant makes such payment into court - 

Proceedings under Fatal Accidents Act 1976[46] and Law Reform (Miscellaneous Provisions) Act 1934[47] - apportionment by court
     37.4  - (1) Where - 

the court shall apportion the money between the different claims.

    (2) The court shall apportion money under paragraph (1) - 

    (3) Where, in an action in which a claim under the Fatal Accidents Act 1976 is made by or on behalf of more than one person - 

the court shall apportion it between the persons entitled to it unless it has already been apportioned by the court, a jury, or agreement between the parties.



PART 38

DISCONTINUANCE




Contents of this Part
Scope of this Part Rule 38.1
Right to discontinue claim Rule 38.2
Procedure for discontinuing Rule 38.3
Right to apply to have notice of discontinuance set aside Rule 38.4
When discontinuance takes effect where permission of the court is not needed Rule 38.5
Liability for costs Rule 38.6
Discontinuance and subsequent proceedings Rule 38.7
Stay of remainder of partly discontinued proceedings where costs not paid Rule 38.8

Scope of this Part
    
38.1  - (1) The rules in this Part set out the procedure by which a claimant may discontinue all or part of a claim.

    (2) A claimant who - 

    (a) claims more than one remedy; and

    (b) subsequently abandons his claim to one or more of the remedies but continues with his claim for the other remedies,

is not treated as discontinuing all or part of a claim for the purposes of this Part.

(The procedure for amending a statement of case, set out in Part 17, applies where a claimant abandons a claim for a particular remedy but wishes to continue with his claim for other remedies)

Right to discontinue claim
    
38.2  - (1) A claimant may discontinue all or part of a claim at any time.

    (2) However - 

    (3) Where there is more than one defendant, the claimant may discontinue all or part of a claim against all or any of the defendants.

Procedure for discontinuing
    
38.3  - (1) To discontinue a claim or part of a claim, a claimant must - 

    (2) The claimant must state in the notice of discontinuance which he files that he has served notice of discontinuance on every other party to the proceedings.

    (3) Where the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the notice of discontinuance.

    (4) Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.

Right to apply to have notice of discontinuance set aside
    
38.4  - (1) Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside(GL).

    (2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.

When discontinuance takes effect where permission of the court is not needed
    
38.5  - (1) Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on him under rule 38.3(1).

    (2) Subject to rule 38.4, the proceedings are brought to an end as against him on that date.

    (3) However, this does not affect proceedings to deal with any question of costs.

Liability for costs
    
38.6  - (1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom he discontinues incurred on or before the date on which notice of discontinuance was served on him.

    (2) If proceedings are only partly discontinued - 

    (3) This rule does not apply to claims allocated to the small claims track.

(Rule 44.12 provides for the basis of assessment where right to costs arises on discontinuance)

Discontinuance and subsequent proceedings
    
38.7 A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if - 

Stay of remainder of partly discontinued proceedings where costs not paid
    
38.8  - (1) This rule applies where - 

    (2) Where this rule applies, the court may stay(GL) the remainder of the proceedings until the claimant pays the whole of the costs which he is liable to pay under rule 38.6






Notes


[45] 1997 c.27.back

[46] 1976 c.30.back

[47] 1934 c.41.back



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