PART 36: PRACTICAL LAW VIDEO SPECIAL

In this Issue there are links to two videos that I have recorded for Practical Law, together with the transcripts of those interviews.

The links to the videos are only available until Thursday, 2 May 2024, and I thank Practical Law for allowing me free use of those for that period.

Part 36 offers: Overview

In this video, I describe the purpose and benefits of making Part 36 offers to settle and outline the basic requirements when making such offers and explain the implications of Part 36 being a self-contained code.

I look at the consequences of accepting a Part 36 offer late and of not accepting a Part 36 offer at all.

This video is 10 minutes long and does not deal with fixed costs cases, which are in a separate video.

Here is the link

– https://uk.practicallaw.thomsonreuters.com/w-043-0756

Part 36 Offers: Practical Differences Under the Fixed Recoverable Costs Regime

This is 16 minutes long and the video chapters are as follows:

Part 36 under the fixed recoverable costs regime.
Costs consequences if a claimant matches or beats its own Part 36 offer.
Costs consequences if a claimant fails to beat a defendant’s Part 36 offer.
Late acceptance by a defendant in a fixed recoverable costs case.
Late acceptance by a claimant in a fixed recoverable costs case.
Areas of uncertainty due to contradictory rules.
Aspects of the rules which need rewriting.

Here is the link

– https://uk.practicallaw.thomsonreuters.com/w-043-0759

TRANSCRIPT OF PRACTICAL LAW VIDEO: PART 36 OFFERS: OVERVIEW

TRANSCRIPT OF PRACTICAL LAW VIDEO: PART 36 OFFERS: PRACTICAL DIFFERENCES UNDER THE FIXED RECOVERABLE COSTS REGIME

Written by kerryunderwood

April 26, 2024 at 2:22 pm

Posted in Uncategorized

2 Responses

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Hi Kerry,

Excellent videos, thank you.

I have a question, though, about consequences of a Claimant failing to beat a Defendant’s Part 36 at trial in a non-fixed costs case.

In what is now the old FRC cases (that no longer proceed under the RTA and EL/PL protocol), the old CPR36.21 provided for the Claimant to obtain her costs up to the fixed costs staging point that was applicable at the expiry of the Part 36 offer, and then for the Claimant to pay defence costs from expiry to judgment.

A similar regime exists under for the new FRC cases under the new CPR36.24.

But for non fixed costs cases (where CPR 36.17 applies) the rule appears to be completely silent on whether the Claimant can obtain any costs at all if she fails to beat a Part 36 offer. I had always understood that a Claimant could get her costs up to the date of expiry of the Part 36 offer (which appears to be what you have said in your videos), but when I was recently asked to justify that position in a non-fixed costs case by reference to the rules, I note that both the rules and the White Book commentary are completely silent on the issue, leaving three potential possibilities:
1. The Claimant can still get back all her costs to Judgment (notwithstanding that the defence will also get a costs order from expiry to Judgment).
2. The Claimant only gets costs to expiry of the order (which in a non-fixed costs case being determined by summary assessment would mean she would need to have prepared a costs schedule that only runs to expiry of her opponent’s offer).
3. The Claimant doesn’t get any costs at all if she fails to beat her Part 36 offer.
I assume the Courts must have resolved the issue by now?

Many thanks,
David

May 2, 2024 at 11:53 pm

Reply
- Hi David,
  
  Thank you for your comment.
  
  Please remind me of which of my subscription services you subscribe to, that is:
  
  – Newsletter;
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  Please also give me your email address and I will then reply to your query, which is a particularly complex one.
  
  Many thanks
  
  Kerry
  
  kerryunderwood
  
  May 7, 2024 at 12:49 pm
  
  Reply

Kerry Underwood