This post provides a summary of the changes to Part 36 and then considers the practical implications of the new rules, including the implications for on-going litigation. There are links to the relevant posts on the issue and a summary of the previous posts.
18 KEY POINTS
1. The new Part 36 has a brand new structure
This is set out in detail in the 8th post in this series.
2. The new rule states, expressly, that Part 36 is a self-contained procedural code.
See the discussion in the 1st post.
3. The new rule states that offers can be made outside Part 36 and still be relevant to the issue of costs.
Covered in the 1st post.
4. It is now made clear that a new Part 36 offer is needed when an appeal takes place
The 1st post
5. There are new sections covering the “scope” of Part 36 and some important new definitions.
6. A Part 36 offer is deemed to be inclusive of interest (usually until 21 days after the offer was made).
7. There are slight changes in the provisions for clarifying an offer but these do not appear to have any major effect
8. There are new rules setting out the way in which a Part 36 offer can be varied, or its terms changed. These include provisions for the criteria when an offeror wants to withdraw an offer within the initial 21 days
9. There are changes to the rules so that permission is needed to accept a Part 36 offer when a trial is “in progress”
10. There is a change in the rules so that, after a split trial, the judge can be told of the existence of a Part 36 offer in relation to other matters but not its terms
11. There is an express reference to a party being able to recover pre-action costs when accepting a Part 36 offer
12. There is a new rule dealing with the procedural effects of accepting a Part 36 offer
13. There are new rules which allows a party to recover 50% of its fees after a Part 36 offer even when its costs budget is assessed at nil
14. There is a new rule dealing with the factors that the court has to take into account when the court is considering whether the consequences of Part 36 should apply – whether the offer was “genuine attempt” to settle proceedings
15. There is a specific section of Part 36 that deals with personal injury cases (but with no real change in substance)
16. The 2nd part of Part 36 deals with the RTA and EL/PL Protocol, again with no real change in substance
17. The major developments in relation to the new Part 36 are:
- The new rules preventing full disclosure after a split trial.
- The question of whether the offer was “genuine offer to settle”
- Express rules governing withdrawal within the “relevant period”.
- The new rules allowing 50% of costs to be recovered if a Part 36 offer is not beaten even when a party has a nil costs budget.
- The new rules requiring Part 36 offers to be made on appeals.
18. The benefits of making a Part 36 offer have not changed
This is important. Although the rule states that offers can be made outside Part 36 and still be relevant to costs to attract the automatic advantages of Part 36 the offer must comply with Part 36. Getting the procedural requirements correct is particularly important for claimants given the major advantages in relation to additional damages; interest and indemnity costs. Even minor failures to comply with the requirements can lead to an offer being outside Part 36, see Shaw -v- Merthyr Tydfil County Borough  EWCA Civ 1678
KEY PRACTICAL POINTS FOR CURRENT LITIGATION
1. If you are litigating on a nil budget then wait until after the 6th April before making a Part 36 offer.
2. Know that you have to make a new Part 36 offer covering appeals.
3. Know the new rules in relation to the disclosure of Part 36 offers after a split trial.
4. Make sure that your Part 36 offers are properly drafted and comply with the rules.
POSTS ON THE NEW PART 36 ALREADY ON THIS BLOG
Here are links to, and summaries of, the first seven posts on the new Part 36.
Deals with the new 36. 1 – 13.
- The scope of Part 36.
- Offers can still be made outside Part 36.
- The application of Part 36 to appeals.
- Form and contents of a Part 36 offer.
- Pre-action offers and the date when an offer is made.
- Clarifying, withdrawing and changing the terms of an offer.
- Withdrawing or changing an offer before the expiry of the relevant offer period.
- Acceptance of a Part 36 offer.
- Acceptance of a Part 36 offer in a split trial case.
- Costs consequences of a Part 36 offer.
Deals with the offer effects of making a Part 36 offer
- The main terms if an offer is accepted.
- What to do if payment is note made.
- If the offer is not for a sum of money.
Deals with unaccepted offers and the increased restriction on the disclosure of offers after split trials
- Restrictions on disclosure of a Part 36 offer.
- Disclosure after a split trial.
Deals with the new rule as to recoverability of costs after a Part 36 offer where the party making the offer has had their costs budget assessed at nil.
- The issue
- The new rule.
- The consequences in relation to costs.
- Costs budgeting when a nil budget sanction is imposed.
Deals with the new provision for costs consequences following judgment – was the offer a “genuine attempt to settle proceedings”?
- The factors the court takes into account.
- Does the section have any relevance.
- The purpose of the new rule and pre-existing case law.
Deals with personal injury cases
- The structure of Part 36 on personal injury cases.
- The new rules
Deals with the second section of the new Part 36 governing offers under the RTA and EL/PL Protocol.
- Summary of the rules governing Protocol offers.
- The new rules.
Deals with the structure of the new Part 36.
Deals with how the new rules reflect and change the existing case law