THE NEW PART 36: PART 7: THE RTA AND EL/PL PROTOCOL: THE NEW SECTION II OF PART 36

This post looks at the new Part 36 rules in relation to the RTA and EL/PL Protocol. The new rules appear to be only slightly different different to the old. These rules come into force on the 6th April 2015

PART 36 AND THE RTA AND EL/PL PROTOCOL

The rules relating to offers when cases are conducted under the RTA and El/PL Protocol are in Section II of the new rules.  No changes appear to have been made apart from the rule, currently in CPR 36.20 that “once the claim is determined, the court will examine the protocol offer” has been deleted in the the new rule.

SUMMARY OF THE RULES IN SECTION II

In summary:-

  • Where the parties have followed the RTA or EL/PL Protocol and issued proceedings under Part 8 – “the Stage Three Procedure” then Part 1 of the Part 36 rules do not apply (that is all the rules we have considered so far).
  • A Protocol offer must be in the Court Proceedings Pack (Part B) form and contain the final total amount offer of the offers from both parties.
  • A Protocol offer is treated as exclusive of all interest.
  • The Protocol offer must not be communicated to the court until the claim is determined.
  • Any other offer to settle must not be communicated to the court at all.
  • If the claimant fails to beat a defendant’s offer the court will order the claimant to pay fixed costs and interest on those fixed costs.
  • If the claimant beats or equals their own offer the defendant will be ordered to pay increased interest on the damages; fixed costs and interests on those costs plus an additional liability based on the percentage set out in 36.14.(3)(d).

THE NEW RULES

SECTION II
RTA Protocol and EL/PL Protocol Offers to Settle
Scope of this Section
36.24.—(1) Where this Section applies, Section I does not apply.
(2) This Section applies to an offer to settle where the parties have followed the RTA
Protocol or the EL/PL Protocol and started proceedings under Part 8 in accordance with
Practice Direction 8B (“the Stage 3 Procedure”).
(3) A reference to the Court Proceedings Pack Form is a reference to the form used in the
relevant Protocol.
(4) Nothing in this Section prevents a party making an offer to settle in whatever way that
party chooses, but if the offer is not made in accordance with this Section, it will not have
any costs consequences.
Form and content of a Protocol offer
36.25.—(1) An offer to settle which is made in accordance with this rule is called a
Protocol offer.
(2) A Protocol offer must—
(a) be set out in the Court Proceedings Pack (Part B) Form; and
(b) contain the final total amount of the offers from both parties.
Time when a Protocol offer is made
36.26.—(1) The Protocol offer is deemed to be made on the first business day after the
Court Proceedings Pack (Part A and Part B) Form is sent to the defendant.
(2) In this Section “business day” has the same meaning as in rule 6.2.
General provisions
36.27. A Protocol offer—
(a) is treated as exclusive of all interest; and 25
(b) has the consequences set out in this Section only in relation to the fixed costs of
the Stage 3 Procedure as provided for in rule 45.18, and not in relation to the costs
of any appeal from the final decision of those proceedings.
Restrictions on the disclosure of a Protocol offer
36.28.—(1) The amount of the Protocol offer must not be communicated to the court until
the claim is determined.
(2) Any other offer to settle must not be communicated to the court at all.
Costs consequences following judgment
36.29.—(1) This rule applies where, on any determination by the court, the claimant
obtains judgment against the defendant for an amount of damages that is—
(a) less than or equal to the amount of the defendant’s Protocol offer;
(b) more than the defendant’s Protocol offer but less than the claimant’s Protocol
offer; or
(c) equal to or more than the claimant’s Protocol offer.
(2) Where paragraph (1)(a) applies, the court must order the claimant to pay—
(a) the fixed costs in rule 45.26; and
(b) interest on those fixed costs from the first business day after the deemed date of the
Protocol offer under rule 36.26.
(3) Where paragraph (1)(b) applies, the court must order the defendant to pay the fixed
costs in rule 45.20.
(4) Where paragraph (1)(c) applies, the court must order the defendant to pay—
(a) interest on the whole of the damages awarded at a rate not exceeding 10% above
base rate for some or all of the period starting with the date specified in rule 36.26;
(b) the fixed costs in rule 45.20;
(c) interest on those fixed costs at a rate not exceeding 10% above base rate; and
(d) an additional amount calculated in accordance with rule 36.17(4)(d).
Deduction of benefits
36.30. For the purposes of rule 36.29(1)(a) the amount of the judgment is less than the
Protocol offer where the judgment is less than that offer once deductible amounts identified
in the judgment are deducted.
(“Deductible amount” is defined in rule 36.22(1)(d).)”

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