THE NEW PART 36: PART 6: PERSONAL INJURY CASES

This is the sixth in the series of posts dealing with the new rules governing Part 36 coming into force in April 2015. This post deals with a new section of Part 36 on personal injury cases.  This appears to be a change in the structure of Part 36 putting all the personal injury elements in one section with no change in substance. (A later post will deals with the section on the RTA and EL/PL Protocol).

THE STRUCTURE OF PART 36 ON PERSONAL INJURY CASES

The new rule is broken into sections. One of these sections is headed personal injury cases.

  1. The new rule Part 36.18 – claims for future pecuniary loss – appears to replicate the existing 36.5.
  2. The new Part 36.19 – offer to settle a claim for provisional damages – replicates the existing 36.6.
  3. The new Part 36.20 – costs consequences of acceptance of offers where section IIIA of Part 45 applies – replicates the existing 36.10A.
  4. The new Part 36.21 –  costs consequences following judgment where section IIIA of Part 45 applies –  replicates the existing 36.14A.
  5. The new Part 36.22 – deduction of benefits and lump sum payments – replicates the existing CPR 36.14.

THE  NEW RULES

PERSONAL INJURY CLAIMS
Personal injury claims for future pecuniary loss
36.18.—(1) This rule applies to a claim for damages for personal injury which is or
includes a claim for future pecuniary loss.
(2) An offer to settle such a claim will not have the consequences set out in this Section
unless it is made by way of a Part 36 offer under this rule.
(3) A Part 36 offer to which this rule applies may contain an offer to pay, or an offer to
accept—
(a) the whole or part of the damages for future pecuniary loss in the form of—
(i) a lump sum;
(ii) periodical payments; or
(iii) both a lump sum and periodical payments;
(b) the whole or part of any other damages in the form of a lump sum.
(4) A Part 36 offer to which this rule applies—
(a) must state the amount of any offer to pay or to accept the whole or part of any
damages in the form of a lump sum;
(b) may state—
(i) what part of the lump sum, if any, relates to damages for future pecuniary
loss; and
(ii) what part relates to other damages to be paid or accepted in the form of a
lump sum;
(c) must state what part of the offer relates to damages for future pecuniary loss to be
paid or accepted in the form of periodical payments and must specify—
(i) the amount and duration of the periodical payments;
(ii) the amount of any payments for substantial capital purchases and when they
are to be made; and
(iii) that each amount is to vary by reference to the retail prices index (or to some
other named index, or that it is not to vary by reference to any index); and
(d) must state either that any damages which take the form of periodical payments will
be funded in a way which ensures that the continuity of payments is reasonably 20
secure in accordance with section 2(4) of the Damages Act 1996(a) or how such
damages are to be paid and how the continuity of their payment is to be secured.
(5) Rule 36.6 applies to the extent that a Part 36 offer by a defendant under this rule
includes an offer to pay all or part of any damages in the form of a lump sum.
(6) Where the offeror makes a Part 36 offer to which this rule applies and which offers to
pay or to accept damages in the form of both a lump sum and periodical payments, the
offeree may only give notice of acceptance of the offer as a whole.
(7) If the offeree accepts a Part 36 offer which includes payment of any part of the
damages in the form of periodical payments, the claimant must, within 7 days of the date of
acceptance, apply to the court for an order for an award of damages in the form of
periodical payments under rule 41.8.
(Practice Direction 41B contains information about periodical payments under the Damages
Act 1996.)
Offer to settle a claim for provisional damages
36.19.—(1) An offeror may make a Part 36 offer in respect of a claim which includes a
claim for provisional damages.
(2) Where the offeror does so, the Part 36 offer must specify whether or not the offeror is
proposing that the settlement shall include an award of provisional damages.
(3) Where the offeror is offering to agree to the making of an award of provisional
damages, the Part 36 offer must also state—
(a) that the sum offered is in satisfaction of the claim for damages on the assumption
that the injured person will not develop the disease or suffer the type of
deterioration specified in the offer;
(b) that the offer is subject to the condition that the claimant must make any claim for
further damages within a limited period; and
(c) what that period is.
(4) Rule 36.6 applies to the extent that a Part 36 offer by a defendant includes an offer to
agree to the making of an award of provisional damages.
(5) If the offeree accepts the Part 36 offer, the claimant must, within 7 days of the date of
acceptance, apply to the court for an award of provisional damages under rule 41.2.
Costs consequences of acceptance of a Part 36 offer where Section IIIA of Part 45
applies
36.20.—(1) This rule applies where a claim no longer continues under the RTA or EL/PL
Protocol pursuant to rule 45.29A(1).
(2) Where a Part 36 offer is accepted within the relevant period, the claimant is entitled to
the fixed costs in Table 6B, Table 6C or Table 6D in Section IIIA of Part 45 for the stage
applicable at the date on which notice of acceptance was served on the offeror.
(3) Where—
(a) a defendant’s Part 36 offer relates to part only of the claim; and
(b) at the time of serving notice of acceptance within the relevant period the claimant
abandons the balance of the claim,
the claimant will be entitled to the fixed costs in paragraph (2).
(4) Subject to paragraphs (5), (6) and (7), where a defendant’s Part 36 offer is accepted
after the relevant period—

(a) the claimant will be entitled to the fixed costs in Table 6B, Table 6C or Table 6D
in Section IIIA of Part 45 for the stage applicable at the date on which the relevant
period expired; and
(b) the claimant will be liable for the defendant’s costs for the period from the date of
expiry of the relevant period to the date of acceptance.
(5) Subject to paragraphs (6) and (7), where the claimant accepts the defendant’s Protocol
offer after the date on which the claim leaves the Protocol—
(a) the claimant will be entitled to the applicable Stage 1 and Stage 2 fixed costs in
Table 6 or Table 6A in Section III of Part 45; and
(b) the claimant will be liable for the defendant’s costs from the date on which the
Protocol offer is deemed to have been made to the date of acceptance.
(6) In a soft tissue injury claim, if the defendant makes a Part 36 offer before the
defendant receives a fixed cost medical report, paragraphs (4) and (5) will only have effect
if the claimant accepts the offer more than 21 days after the defendant received the report.
(7) In this rule, “fixed cost medical report” and “soft tissue injury claim” have the same
meaning as in paragraph 1.1(10A) and (16A) respectively of the RTA Protocol.
(8) For the purposes of this rule a defendant’s Protocol offer is either—
(a) defined in accordance with rules 36.25 and 36.26; or
(b) if the claim leaves the Protocol before the Court Proceedings Pack Form is sent to
the defendant—
(i) the last offer made by the defendant before the claim leaves the Protocol; and
(ii) deemed to be made on the first business day after the claim leaves the
Protocol.
(9) A reference to—
(a) the “Court Proceedings Pack Form” is a reference to the form used in the Protocol;
and
(b) “business day” is a reference to a business day as defined in rule 6.2.
(10) Fixed costs shall be calculated by reference to the amount of the offer which is
accepted.
(11) Where the parties do not agree the liability for costs, the court must make an order as
to costs.
(12) Where the court makes an order for costs in favour of the defendant—
(a) the court must have regard to; and
(b) the amount of costs ordered must not exceed,
the fixed costs in Table 6B, Table 6C or Table 6D in Section IIIA of Part 45 applicable at
the date of acceptance, less the fixed costs to which the claimant is entitled under paragraph
(4) or (5).
(13) The parties are entitled to disbursements allowed in accordance with rule 45.29I
incurred in any period for which costs are payable to them.
Costs consequences following judgment where section IIIA of Part 45 applies
36.21.—(1) Where a claim no longer continues under the RTA or EL/PL Protocol
pursuant to rule 45.29A(1), rule 36.17 applies with the following modifications.
(2) Subject to paragraphs (3), (4) and (5), where an order for costs is made pursuant to
rule 36.17(3)—
(a) the claimant will be entitled to the fixed costs in Table 6B, 6C or 6D in Section
IIIA of Part 45 for the stage applicable at the date on which the relevant period
expired; and 22
(b) the claimant will be liable for the defendant’s costs from the date on which the
relevant period expired to the date of judgment.
(3) Subject to paragraphs (4) and (5), where the claimant fails to obtain a judgment more
advantageous than the defendant’s Protocol offer—
(a) the claimant will be entitled to the applicable Stage 1 and Stage 2 fixed costs in
Table 6 or 6A in Section III of Part 45; and
(b) the claimant will be liable for the defendant’s costs from the date on which the
Protocol offer is deemed to be made to the date of judgment; and
(c) in this rule, the amount of the judgment is less than the Protocol offer where the
judgment is less than the offer once deductible amounts identified in the judgment
are deducted.
(“Deductible amount” is defined in rule 36.22(1)(d).)
(4) In a soft tissue injury claim, if the defendant makes a Part 36 offer or Protocol offer
before the defendant receives a fixed cost medical report, paragraphs (2) and (3) will only
have effect in respect of costs incurred by either party more than 21 days after the defendant
received the report.
(5) In this rule “fixed cost medical report” and “soft tissue injury claim” have the same
meaning as in paragraph 1.1(10A) and (16A) respectively of the RTA Protocol.
(6) For the purposes of this rule a defendant’s Protocol offer is either—
(a) defined in accordance with rules 36.25 and 36.26; or
(b) if the claim leaves the Protocol before the Court Proceedings Pack Form is sent to
the defendant—
(i) the last offer made by the defendant before the claim leaves the Protocol; and
(ii) deemed to be made on the first business day after the claim leaves the
Protocol.
(7) A reference to—
(a) the “Court Proceedings Pack Form” is a reference to the form used in the Protocol;
and
(b) “business day” is a reference to a business day as defined in rule 6.2.
(8) Fixed costs must be calculated by reference to the amount which is awarded.
(9) Where the court makes an order for costs in favour of the defendant—
(a) the court must have regard to; and
(b) the amount of costs ordered shall not exceed,
the fixed costs in Table 6B, 6C or 6D in Section IIIA of Part 45 applicable at the date of
judgment, less the fixed costs to which the claimant is entitled under paragraph (2) or (3).
(10) The parties are entitled to disbursements allowed in accordance with rule 45.29I
incurred in any period for which costs are payable to them.
Deduction of benefits and lump sum payments
36.22.—(1) In this rule and rule 36.11—
(a) “the 1997 Act” means the Social Security (Recovery of Benefits) Act 1997(a);
(b) “the 2008 Regulations” means the Social Security (Recovery of Benefits)(Lump
Sum Payments) Regulations 2008(b);
(c) “recoverable amount” means—

(i) “recoverable benefits” as defined in section 1(4)(c) of the 1997 Act; and
(ii) “recoverable lump sum payments” as defined in regulation 1 of the 2008
Regulations;
(d) “deductible amount” means—
(i) any benefits by the amount of which damages are to be reduced in accordance
with section 8 of, and Schedule 2 to the 1997 Act(a) (“deductible benefits”);
and
(ii) any lump sum payment by the amount of which damages are to be reduced in
accordance with regulation 12 of the 2008 Regulations (“deductible lump sum
payments”); and
(e) “certificate”—
(i) in relation to recoverable benefits, is construed in accordance with the
provisions of the 1997 Act; and
(ii) in relation to recoverable lump sum payments, has the meaning given in
section 29 of the 1997 Act, as applied by regulation 2 of, and modified by
Schedule 1 to, the 2008 Regulations.
(2) This rule applies where a payment to a claimant following acceptance of a Part 36
offer would be a compensation payment as defined in section 1(4)(b) or 1A(5)(b)(b) of the
1997 Act.
(3) A defendant who makes a Part 36 offer must, where relevant, state either—
(a) that the offer is made without regard to any liability for recoverable amounts; or
(b) that it is intended to include any deductible amounts.
(4) Where paragraph (3)(b) applies, paragraphs (5) to (9) will apply to the Part 36 offer.
(5) Before making the Part 36 offer, the offeror must apply for a certificate.
(6) Subject to paragraph (7), the Part 36 offer must state—
(a) the gross amount of compensation;
(b) the name and amount of any deductible amounts by which the gross amount is
reduced; and
(c) the net amount of compensation.
(7) If at the time the offeror makes the Part 36 offer, the offeror has applied for, but has
not received, a certificate, the offeror must clarify the offer by stating the matters referred to
in paragraph (6)(b) and (c) not more than 7 days after receipt of the certificate.
(8) For the purposes of rule 36.17(1)(a), a claimant fails to recover more than any sum
offered (including a lump sum offered under rule 36.6) if the claimant fails upon judgment
being entered to recover a sum, once deductible amounts identified in the judgment have
been deducted, greater than the net amount stated under paragraph (6)(c).
(Section 15(2) of the 1997 Act provides that the court must specify the compensation
payment attributable to each head of damage. Schedule 1 to the 2008 Regulations modifies
section 15 of the 1997 Act in relation to lump sum payments and provides that the court
must specify the compensation payment attributable to each or any dependant who has
received a lump sum payment.)
(9) Where—
(a) further deductible amounts have accrued since the Part 36 offer was made; and
(b) the court gives permission to accept the Part 36 offer,

(a) Schedule 12 was amended by the Welfare Reform Act 2012 (c. 5), section 31, Schedule 2 paragraphs 40, 42; section 91,
Schedule 9, paragraphs 34, 36; and section 147, Schedule 14, Parts 1 and 9.
(b) Section 1A was inserted by the Child Maintenance and Other Payments Act 2008 (c. 6), section 54. 24
the court may direct that the amount of the offer payable to the offeree shall be reduced by a
sum equivalent to the deductible amounts paid to the claimant since the date of the offer.
(Rule 36.11(3)(b) states that permission is required to accept an offer where the relevant
period has expired and further deductible amounts have been paid to the claimant.)

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