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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 -
(a) a defendant's Part 36 offer or Part 36 payment is made less than 21 days before the start of the trial; or
(b) the claimant does not accept it within the period specified in paragraph (1) -
(i) if the parties agree the liability for costs, the claimant may accept the offer or payment without needing the permission of the court;
(ii) if the parties do not agree the liability for costs the claimant may only accept the offer or payment with the permission of the court.
(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 -
(a) a claimant's Part 36 offer is made less than 21 days before the start of the trial; or
(b) the defendant does not accept it within the period specified in paragraph (1) -
(i) if the parties agree the liability for costs, the defendant may accept the offer without needing the permission of the court;
(ii) if the parties do not agree the liability for costs the defendant may only accept the offer with the permission of the court.
(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 -
(a) a Part 36 offer or a Part 36 payment relates to part only of the claim; and
(b) at the time of serving notice of acceptance the claimant abandons the balance of the claim,
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 -
(a) the stay(GL) will be upon the terms of the offer; and
(b) either party may apply to enforce those terms without the need for a new claim.
(3) If a Part 36 offer or a Part 36 payment which relates to part only of the claim is accepted -
(a) the claim will be stayed(GL) as to that part; and
(b) unless the parties have agreed costs, the liability for costs shall be decided by the court.
(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 -
(a) to enforce the terms of a Part 36 offer;
(b) to deal with any question of costs (including interest on costs) relating to the proceedings;
(c) to order payment out of court of any sum paid into court.
(6) Where -
(a) a Part 36 offer has been accepted; and
(b) a party alleges that -
(i) the other party has not honoured the terms of the offer; and
(ii) he is therefore entitled to a remedy for breach of contract,
the party may claim the remedy by applying to the court without the need to start a new claim unless the court orders otherwise.
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 -
(a) he discontinues his claim against those defendants who have not made the offer or payment; and
(b) those defendants give written consent to the acceptance of the offer or payment.
(3) If the claimant alleges that the defendants have a several liability(GL) to him the claimant may -
(a) accept the offer or payment in accordance with rule 36.11(1); and
(b) continue with his claims against the other defendants.
(4) In all other cases the claimant must apply to the court for -
(a) an order permitting a payment out to him of any sum in court; and
(b) such order as to costs as the court considers appropriate.
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 -
(a) the offer or payment may be accepted only with the permission of the court; and
(b) no payment out of any sum in court shall be made without a court order.
(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 -
(a) any money in court may be paid out only with a court order; and
(b) the court must, in the order, deal with the whole costs of the proceedings.
(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 -
(a) where the defence of tender before claim(GL) has been raised;
(b) where the proceedings have been stayed(GL) under rule 36.15 following acceptance of a Part 36 offer or Part 36 payment; or
(c) where -
(i) the issue of liability has been determined before any assessment of the money claimed; and
(ii) the fact that there has or has not been a Part 36 payment may be relevant to the question of the costs of the issue of liability.
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 -
(a) fails to better a Part 36 payment; or
(b) fails to obtain a judgment which is more advantageous than a Part 36 offer.
(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 -
(a) a defendant is held liable for more; or
(b) the judgment against a defendant is more advantageous to the claimant,
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 -
(a) his costs on the indemnity basis from the latest date when the defendant could have accepted the offer without needing the permission of the court; and
(b) interest on those costs at a rate not exceeding 10% above base rate(GL).
(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 -
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer or Part 36 payment was made;
(c) the information available to the parties at the time when the Part 36 offer or Part 36 payment was made; and
(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer or payment into court to be made or evaluated.
(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 -
(a) a claimant's Part 36 offer which offers to accept a sum of money; or
(b) a Part 36 payment notice,
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 -
(a) whether interest is offered; and
(b) if so, the amount offered, the rate or rates offered and the period or periods for which it is offered.
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
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Money paid into court under a court order - general |
Rule 37.1 |
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Money paid into court may be treated as a Part 36 payment |
Rule 37.2 |
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Money paid into court where defendant wishes to rely on defence of tender before claim |
Rule 37.3 |
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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 -
(a) he may choose to treat the whole or any part of the money paid into court as a Part 36 payment; and
(b) if he does so, he must file a Part 36 payment notice.
Proceedings under Fatal Accidents Act 1976[46] and Law Reform (Miscellaneous Provisions) Act 1934[47] - apportionment by court
37.4
- (1) Where -
(a) a claim includes claims arising under -
(i) the Fatal Accidents Act 1976; and
(ii) the Law Reform (Miscellaneous Provisions) Act 1934;
(b) a single sum of money is paid into court in satisfaction of those claims; and
(c) the money is accepted,
the court shall apportion the money between the different claims.
(2) The court shall apportion money under paragraph (1) -
(a) when it gives directions under rule 21.11 (control of money received by a child or patient); or
(b) if rule 21.11 does not apply, when it gives permission for the money to be paid out of court.
(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 -
(a) a sum in respect of damages is ordered or agreed to be paid in satisfaction of the claim; or
(b) a sum of money is accepted in satisfaction of the claim,
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
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Scope of this Part |
Rule 38.1 |
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Right to discontinue claim |
Rule 38.2 |
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Procedure for discontinuing |
Rule 38.3 |
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Right to apply to have notice of discontinuance set aside |
Rule 38.4 |
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When discontinuance takes effect where permission of the court is not needed |
Rule 38.5 |
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Liability for costs |
Rule 38.6 |
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Discontinuance and subsequent proceedings |
Rule 38.7 |
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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 -
(a) a claimant must obtain the permission of the court if he wishes to discontinue all or part of a claim in relation to which -
(i) the court has granted an interim injunction(GL); or
(ii) any party has given an undertaking to the court;
(b) where the claimant has received an interim payment in relation to a claim (whether voluntarily or pursuant to an order under Part 25), he may discontinue that claim only if -
(i) the defendant who made the interim payment consents in writing; or
(ii) the court gives permission;
(c) where there is more than one claimant, a claimant may not discontinue unless -
(i) every other claimant consents in writing; or
(ii) the court gives permission.
(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 -
(a) file a notice of discontinuance; and
(b) serve a copy of it on every other party to the proceedings.
(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 -
(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and
(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.
(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 -
(a) he discontinued the claim after the defendant filed a defence; and
(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.
Stay of remainder of partly discontinued proceedings where costs not paid
38.8
- (1) This rule applies where -
(a) proceedings are partly discontinued;
(b) a claimant is liable to pay costs under rule 38.6; and
(c) the claimant fails to pay those costs within 21 days of -
(i) the date on which the parties agreed the sum payable by the claimant; or
(ii) the date on which the court ordered the costs to be paid.
(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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