Elisa Corvalanis preparing a manual on various aspects of the Civil Procedure Rules (CPR) Part 36 and Practice Direction (PD) 36. You are asked to contribute towards this by completing Examples 2 to 6 inclusive taken from the draft manual entries set out below.

You must ensure that you follow the required format (illustrated by Example 1 that has been completed by your supervisor) of explaining each answer by reference to any relevant facts given in the question and the relevant law, including CPR Part 36, PD 36, case law, practitioner texts and practitioner resources.

Elisa Corvalan makes it clear to you that legal research is required, and the manual must not simply contain material cut and pasted from the CPR or any other sources. Concise and precise information is required that answers with an explanation each practical question and any sub-questions fully and accurately with all relevant legal authorities properly cited.

Please note that the facts of one example do notrelate to the facts of any other example.

Each example question should be answered only from its own facts.

NOTE TO CANDIDATES ON THE CITATION OF LEGAL AUTHORITIES

Any relevant legal authorities, including their citations, must be included in your answers to the questions for Examples 2 to 6 inclusive. See further the answers to questions (i), (ii) and (iii) of Example 1.

NOTE TO CANDIDATES ON THE WORD COUNT FOR THIS TASK

Onlythe text of your answers to the questions for Examples 2 to 6 inclusiveshould be included in your word count.

Donot include in your word count the following:

(a) any of the material that you copy directly from Examples 2 to 6 inclusive; and

(b) any material that you copy directly from the Civil Procedure Rules 1998 or any other legal authorities.

ULaw LLP Training Manual: Part 36

Introduction: why our clients should consider making a Part 36 offer

A Part 36 offer provides a means of putting real pressure on an opponent to settle a case and, to some extent, of protecting our client's position on costs. If a defendant makes a Part 36 offer and the claimant does not accept it but at trial fails to obtain a judgment more advantageous than that offer, the claimant will usually suffer severe financial penalties. Likewise, if a claimant makes a Part 36 offer which is not accepted and the judgment against the defendant is at least as advantageous to the claimant as the proposals contained in their Part 36 offer, the defendant will usually suffer severe financial penalties.

Scope of these notes

These notes only concern offers made in non-personal injury claims made under Section I of CPR Part 36. All materials relating to personal injury claims and Section II have been removed.

Any reference to the standard and indemnity bases of the assessment of legal costs are not explained in these notes as these are addressed in a different part of the manual.

Formalities

Example 1

CPR, rule 36.5(1) provides that a Part 36 offer must

(a) be in writing;

(b) make clear that it is made pursuant to Part 36;

(c) specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs in accordance with rule 36.13 if the offer is accepted;

(d) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and

(e) state whether it takes into account any counterclaim.

Questions

1. To comply with (a), must the Part 36 offer always be made in a letter?

1. To comply with (b), must the Part 36 offer state that "this offer is made pursuant to Part 36"?

1. What does (c) mean?

Answers

(i) No, as PD 36 para.1.1 provides that alternatively a "Part 36 offer may be made using Form N242A".

Practical Law in the Practice Note, "Part 36 Offers: form and content requirements" (Resource ID 1-598-0505) (https://uk.practicallaw.thomsonreuters.com accessed on [date]) suggests that making a Part 36 offer in an email would also count as an offer in writing relying on the authority of Thomas v Home Office [2006] EWCA Civ 1355.

(ii) No, as the White Book ([year], Sweet & Maxwell) states in Volume 1, Section A at [36.5.1.1], this formality would be satisfied by, for example, a simple statement that the offer is made pursuant to Part 36 or perhaps a heading of "PART 36 OFFER".

(iii) The "period" referred to in (c) is defined in rule 36.3(g) as "the relevant period".

To make an effective Part 36 offer, the offeror (whether claimant or defendant) must make it clear that if the offeree accepts the offer within the relevant period, being 21 days or more from when the offer was made, the defendant will become liable to pay the claimant's costs up to the date of acceptance of the offer. This is the effect of rule 36.13(1).

O'Hare & Browne in "Civil Litigation" (20^th edition) at 29-007 indicate that in some circumstances the relevant period can be different from that specified in the offer; for example, rule 36.3(g)(ii) provides that if the offer is made less than 21 days before trial, the relevant period is the period up to the end of the trial. At 29-014 it is noted that in these circumstances permission of the court is required to accept such an offer.

Service of a Part 36 Offer and calculation of the relevant period

Example 2

The service of a Part 36 offer and calculation of the relevant period is illustrated by this example. It is based on 2 months from the fictitious calendar year of 20YY set out below.

Calendar for 20YY

Shaded days represent weekends and bank holidays.

April 20YY			May 20YY
S	M	T	W	T	F	S			S	M	T	W	T	F	S
						1				1	2	3	4	5	6
2	3	4	5	6	7	8			7	8	9	10	11	12	13
9	10	11	12	13	14	15			14	15	16	17	18	19	20
16	17	18	19	20	21	22			21	22	23	24	25	26	27
23	24	25	26	27	28	29			28	29	30	31
30

Question

A Part 36 offer is emailed to the offeree on Friday, 28 April at 4.50pm. The relevant period stated in the offer is 21 days. A trial date has not yet been fixed.

What is the last day of the relevant period?

Answer

Extensions of Time Periods

Example 3

Questions

1. Can the court order an extension of the relevant period?

1. CPR, rule 36.14(6)(a) provides that unless the parties agree otherwise in writing, where a Part 36 offer that is or includes an offer to pay or accept a single sum of money is accepted, that sum must be paid to the claimant within 14 days of the date of acceptance. Can the court order an extension of this 14 day period?

Answers

Validity of Part 36 Offers

Example 4

Questions

1. Is a Part 36 offer valid if the method used to serve it was invalid?

1. Can an offeror make different valid Part 36 offers to an offeree at different times pre-action and/or during the proceedings?

1. Can a valid Part 36 offer be made if proceedings have been stayed for the parties to attempt mediation?

Answers

Financial Consequences of 'Successful' Part 36 Offers

Example 5

Question

At a High Court trial today the Claimant is awarded 450,000 in damages inclusive of interest. The trial judge determines that the Claimant has failed to obtain a judgment more advantageous than the Defendant's Part 36 offer made last year. The relevant period of that offer expired on 10 May [last year].

The trial judge indicates that they will make an order against the Claimant pursuant to CPR rule 36.17(3)(a) and (b). The judge holds that it is not unjust to do so

Assume that before 10 May [last year] the Claimant's recoverable legal costs were 52,600 and the Defendant's 47,300.

Assume that after 10 May [last year] the Claimant's recoverable legal costs are 79,430 and the Defendant's 61,946.

Questions

1. Taking into account the Defendant's liability to pay their own legal costs, how much is the Defendant out of pocket? Include all relevant figures and an explanation of your calculations.

1. Taking into account the Claimant's liability to pay their own legal costs, how much is the Claimant better off? Include all relevant figures and an explanation of your calculations.

Answers

Example 6

Last year a Part 36 offer was made in High Court breach of contract proceedings by the Claimant.

At trial today the trial judge determines that the judgment against the Defendant is at least as advantageous to the Claimant as the proposals contained in the Claimant's Part 36 offer. The trial judge indicates that they will make an order against the Defendant pursuant to CPR rule 36.17(4)(a), (b), (c) and (d). The judge holds that it is not unjust to do so.

The Claimant is awarded the following:

1. Damages of 394,523;
2. Interest on those damages pursuant to a clause in the contract of 27,396.50; and
3. Interest awarded on those damages under CPR, rule 36.17(4)(a) of 13,407.60.

Question

By reference to all the available figures, how much might the trial judge award as the additional amount pursuant to rule 36.17(4)(d)?

Answer