36.2
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(1)
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An offer made in accordance with the requirements of
this Part is called -- if made by way of a payment into court, a
Part 36 payment;
- otherwise a Part 36 offer.
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(Rule 36.3 sets out when an offer has to be made by way
of a payment into court)
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(2)
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The party who makes an offer is the
offeror.
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(3)
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The party to whom an offer is made is the
offeree.
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(4)
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A Part 36 offer or a Part 36 payment -- may be made at any time after proceedings have
started; and
- may be made in appeal proceedings.
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(5)
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A Part 36 offer or a Part 36 payment shall not have the
consequences set out in this Part while the claim is being dealt with on the
small claims track unless the court orders otherwise.
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(Part 26 deals with allocation to the small claims
track)
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(Rule 27.2 provides that Part 36 does not apply to small
claims)
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36.4
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(1)
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This rule applies where a defendant to a claim which
includes both a money claim and a non-money claim wishes -- to make an offer to settle the whole claim which
will have the consequences set out in this Part; and
- to make a money offer in respect of the money
claim and a non-money offer in respect of the non-money claim.
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(2)
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The defendant must -- make a Part 36 payment in relation to the money
claim; and
- make a Part 36 offer in relation to the non-money
claim.
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(3)
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The Part 36 payment notice must -- identify the document which sets out the terms of
the Part 36 offer; and
- state that if the claimant gives notice of
acceptance of the Part 36 payment he will be treated as also accepting the Part
36 offer.
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(Rule 36.6 makes provision for a Part 36 payment
notice)
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(4)
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If the claimant gives notice of acceptance of the Part
36 payment, he shall also be taken as giving notice of acceptance of the Part
36 offer in relation to the non-money claim.
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36.5
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(1)
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A Part 36 offer must be in writing.
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(2)
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A Part 36 offer may relate to the whole claim or to
part of it or to any issue that arises in it.
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(3)
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A Part 36 offer must -- 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;
- state whether it takes into account any
counterclaim; and
- if it is expressed not to be inclusive of
interest, give the details relating to interest set out in rule
36.22(2).
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(4)
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A defendant may make a Part 36 offer limited to
accepting liability up to a specified proportion.
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(5)
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A Part 36 offer may be made by reference to an interim
payment.
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(Part 25 contains provisions relating to interim
payments)
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(6)
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A Part 36 offer made not less than 21 days before the
start of the trial must -- be expressed to remain open for acceptance for 21
days from the date it is made; and
- provide that after 21 days the offeree may only
accept it if -
- the parties agree the liability for costs;
or
- the court gives permission.
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(7)
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A Part 36 offer made less than 21 days before the start
of the trial must state that the offeree may only accept it if -- the parties agree the liability for costs;
or
- the court gives permission.
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(Rule 36.8 makes provision for when a Part 36 offer is
treated as being made)
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(8)
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If a Part 36 offer is withdrawn it will not have the
consequences set out in this Part.
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36.6
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(1)
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A Part 36 payment may relate to the whole claim or part
of it or to an issue that arises in it.
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(2)
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A defendant who makes a Part 36 payment must file with
the court a notice (Part 36 payment notice) which -- states the amount of the payment;
- states whether the payment relates to the whole
claim or to part of it or to any issue that arises in it and if so to which
part or issue;
- states whether it takes into account any
counterclaim;
- if an interim payment has been made, states that
the defendant has taken into account the interim payment; and
- if it is expressed not to be inclusive of
interest, gives the details relating to interest set out in rule
36.22(2).
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(Rule 25.6 makes provision for an interim payment)
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(Rule 36.4 provides for further information to be
included where a defendant wishes to settle the whole of a claim which includes
a money claim and a non-money claim)
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(Rule 36.23 makes provision for extra information to be
included in the payment notice in a case where benefit is recoverable under the
Social Security (Recovery of Benefit) Act 1997)
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(3)
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The court will serve the Part 36 payment notice on the
offeree unless the offeror informs the court, when the money is paid into
court, that the offeror will serve the notice.
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(4)
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Where the offeror serves the Part 36 payment notice he
must file a certificate of service.
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(Rule 6.10 specifies what must be contained in a
certificate of service)
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(5)
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A Part 36 payment may be withdrawn or reduced only with
the permission of the court.
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36.7
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(1)
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A defendant may make a Part 36 payment in respect of a
claim which includes a claim for provisional damages.
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(2)
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Where he does so, the Part 36 payment notice must
specify whether or not the defendant is offering to agree to the making of an
award of provisional damages.
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(3)
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Where the defendant is offering to agree to the making
of an award of provisional damages the payment notice must also state
-- that the sum paid into court 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
notice;
- that the offer is subject to the condition that
the claimant must make any claim for further damages within a limited period;
and
- what that period is.
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(4)
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Where a Part 36 payment is -- made in accordance with paragraph (3); and
- accepted within the relevant period in rule
36.11, the Part 36 payment will have the consequences set out in rule 36.13,
unless the court orders otherwise.
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(5)
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If the claimant accepts the Part 36 payment he must,
within 7 days of doing so, apply to the court for an order for an award of
provisional damages under rule 41.2.
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(Rule 41.2 provides for an order for an award of
provisional damages)
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(6)
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The money in court may not be paid out until the court
has disposed of the application made in accordance with paragraph (5).
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36.10
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(1)
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If a person makes an offer to settle before proceedings
are begun which complies with the provisions of this rule, the court will take
that offer into account when making any order as to costs.
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(2)
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The offer must -- be expressed to be open for at least 21 days
after the date it was made;
- if made by a person who would be a defendant were
proceedings commenced, include an offer to pay the costs of the offeree
incurred up to the date 21 days after the date it was made; and
- otherwise comply with this Part.
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(3)
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If the offeror is a defendant to a money claim
-- he must make a Part 36 payment within 14 days of
service of the claim form; and
- the amount of the payment must be not less than
the sum offered before proceedings began.
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(4)
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An offeree may not, after proceedings have begun,
accept -- an offer made under paragraph (2); or
- a Part 36 payment made under paragraph
(3),
without the permission of the court.
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(5)
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An offer under this rule is made when it is received by
the offeree.
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36.15
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(1)
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If a Part 36 offer or Part 36 payment relates to the
whole claim and is accepted, the claim will be
stayed(GL).
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(2)
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In the case of acceptance of a Part 36 offer which
relates to the whole claim -- the stay(GL) will be upon
the terms of the offer; and
- either party may apply to enforce those terms
without the need for a new claim.
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(3)
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If a Part 36 offer or a Part 36 payment which relates
to part only of the claim is accepted -- the claim will be stayed(GL)
as to that part; and
- unless the parties have agreed costs, the
liability for costs shall be decided by the court.
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(4)
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If the approval of the court is required before a
settlement can be binding, any stay(GL) which would
otherwise arise on the acceptance of a Part 36 offer or a Part 36 payment will
take effect only when that approval has been given.
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(5)
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Any stay(GL) arising under this
rule will not affect the power of the court -- to enforce the terms of a Part 36 offer;
- to deal with any question of costs (including
interest on costs) relating to the proceedings;
- to order payment out of court of any sum paid
into court.
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(6)
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Where -- a Part 36 offer has been accepted; and
- a party alleges that -
- the other party has not honoured the terms
of the offer; and
- he is therefore entitled to a remedy for
breach of contract,
the party may claim the remedy by applying to the court
without the need to start a new claim unless the court orders otherwise.
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36.18
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(1)
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Where a Part 36 offer or a Part 36 payment is made in
proceedings to which rule 21.10 applies -- the offer or payment may be accepted only with
the permission of the court; and
- no payment out of any sum in court shall be made
without a court order.
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(Rule 21.10 deals with compromise etc. by or on behalf of
a child or patient)
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(2)
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Where the court gives a claimant permission to accept a
Part 36 offer or payment after the trial has started -- any money in court may be paid out only with a
court order; and
- the court must, in the order, deal with the whole
costs of the proceedings.
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(3)
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Where a claimant accepts a Part 36 payment after a
defence of tender before claim(GL) has been put forward by
the defendant, the money in court may be paid out only after an order of the
court.
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(Rule 37.3 requires a defendant who wishes to rely on a
defence of tender before claim(GL) to make a payment into
court)
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36.21
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(1)
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This rule applies where at trial -- a defendant is held liable for more; or
- the judgment against a defendant is more
advantageous to the claimant,
than the proposals contained in a claimants Part
36 offer.
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(2)
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The court may order interest on the whole or part of
any sum of money (excluding interest) awarded to the claimant at a rate not
exceeding 10% above base rate(GL) for some or all
of the period starting with the latest date on which the defendant could have
accepted the offer without needing the permission of the court.
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(3)
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The court may also order that the claimant is entitled
to -- his costs on the indemnity basis from the latest
date when the defendant could have accepted the offer without needing the
permission of the court; and
- interest on those costs at a rate not exceeding
10% above base rate(GL).
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(4)
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Where this rule applies, the court will make the orders
referred to in paragraphs (2) and (3) unless it considers it unjust to do
so.
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(Rule 36.12 sets out the latest date when the defendant
could have accepted the offer)
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(5)
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In considering whether it would be unjust to make the
orders referred to in paragraphs (2) and (3) above, the court will take into
account all the circumstances of the case including -- the terms of any Part 36 offer;
- the stage in the proceedings when any Part 36
offer or Part 36 payment was made;
- the information available to the parties at the
time when the Part 36 offer or Part 36 payment was made; and
- the conduct of the parties with regard to the
giving or refusing to give information for the purposes of enabling the offer
or payment into court to be made or evaluated.
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(6)
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Where the court awards interest under this rule and
also awards interest on the same sum and for the same period under any other
power, the total rate of interest may not exceed 10% above base
rate(GL).
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36.23
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(1)
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This rule applies where a payment to a claimant
following acceptance of a Part 36 offer or Part 36 payment into court would be
a compensation payment as defined in section 1 of the Social Security (Recovery
of Benefits) Act 1997
(54)
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(2)
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A defendant to a money claim may make an offer to
settle the claim which will have the consequences set out in this Part, without
making a Part 36 payment if -- at the time he makes the offer he has applied
for, but not received, a certificate of recoverable benefit; and
- he makes a Part 36 payment not more than 7 days
after he receives the certificate.
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(Section 1 of the 1997 Act defines recoverable
benefit)
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(3)
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A Part 36 payment notice must state -- the amount of gross compensation;
- the name and amount of any benefit by which that
gross amount is reduced in accordance with section 8 and Schedule 2 to the 1997
Act; and
- that the sum paid in is the net amount after
deduction of the amount of benefit.
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(4)
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For the purposes of rule 36.20, a claimant fails to
better a Part 36 payment if he fails to obtain judgment for more than the gross
sum specified in the Part 36 payment notice.
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(5)
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Where -- a Part 36 payment has been made; and
- application is made for the money remaining in
court to be paid out,
the court may treat the money in court as being reduced
by a sum equivalent to any further recoverable benefits paid to the claimant
since the date of payment into court and may direct payment out
accordingly.
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