THE NEW PART 36: PART 3: UNACCEPTED OFFERS AND INCREASED RESTRICTIONS ON DISCLOSURE OF OFFERS

This is the third in the series of posts that deals with the Part 36 provisions coming into force on the 6th April 2015. Here we look at the rules restricting disclosure of a Part 36 offer and some important new provisions.

RESTRICTIONS OF DISCLOSURE OF A PART 36 OFFER

The provisions preventing disclosure of a Part 36 offer until after a case has been decided are retained. However there are new provisions that deal specifically with the situation when there is a split trial or where some, but not all, of the issues are decided.

THE NEW RULE

“UNACCEPTED OFFERS
Restriction on disclosure of a Part 36 offer
36.16.—(1) A Part 36 offer will be treated as “without prejudice except as to costs”.
(2) The fact that a Part 36 offer has been made and the terms of such offer must not be
communicated to the trial judge until the case has been decided.
(3) Paragraph (2) does not apply—
(a) where the defence of tender before claim has been raised;
(b) where the proceedings have been stayed under rule 36.14 following acceptance of
a Part 36 offer;
(c) where the offeror and the offeree agree in writing that it should not apply; or
(d) where, although the case has not been decided—
(i) any part of, or issue in, the case has been decided; and
(ii) the Part 36 offer relates only to parts or issues that have been decided.
(4) In a case to which paragraph (3)(d)(i) applies, the trial judge—
(a) may be told whether or not there are Part 36 offers other than those referred to in
paragraph (3)(d)(ii); but
(b) must not be told the terms of any such other offers unless any of paragraphs (3)(a)
to (c) applies.”

THE NEW PROVISIONS

The new provisions are the sections in bold. In essence where the hearing or trial does not determine all the issues:

  • The judge may  be told about any Part 36 offers which relate to the issues decided.
  • The judge must not be told of the terms of any other offers (unless the defence is one of tender before action; the proceedings are stayed following acceptance of a Part 36 offer or the parties agree in writing that 36.16(2) should not apply).

So, for instance, after a trial on liability the judge can be told of any offers in relation to liability but not in relation to damages.

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