Myton on Tactics

Each fortnight we circulate an e-bulletin containing a brief strategic tip on English civil legal procedure to enable claims handlers to utilise the procedural code to their advantage when dealing with claims. If you would like to receive these e-bulletins, please register your interest by contacting Scott Yates.

    Part 36 Civil Procedure Rules 1998

  • A withdrawn CPR Part 36 offer will not have the usual costs consequences. However, the court is required to have regard to any offer to settle when exercising its wide discretion on costs.
  • A CPR Part 36 offer can be made by letter, email or using court form N242A. If you fail to comply with the formal requirements of CPR Part 36 the costs consequences are likely to be dis-applied. However, there is limited authority to suggest that the court may be prepared to apply the costs consequences of CPR Part 36 to an offer that did not fully comply if there was an obvious intent by the parties that the offer should comply.
  • The formal requirements for every CPR Part 36 offer are that it must be made in writing, state on its face that it is intended to have the consequences of CPR Part 36, unless the offer is made less than 21 days before the start of the trial, specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs if the offer is accepted (this is known as the relevant period), state whether it relates to the whole of the claim, part of it or to an issue and finally, state whether the offer takes into account any counterclaim.
  • Within 7 days of receiving a CPR Part 36 offer, you are entitled to request clarification. This could include a request to clarify how the offer has been calculated.
  • If a CPR Part 36 offer is made it can only be withdrawn or reduced, during the period for acceptance (known as the relevant period), with permission of the court. Once this period has expired, however, it can be withdrawn or reduced without permission.
  • The commencement date of a CPR Part 36 offer runs from the date when it is deemed to be served on the opponent and not when it is received. Any change in the terms of a CPR Part 36 offer is effective when notice of the change is served on the offeree.
  • The costs consequences of a CPR Part 36 offer do not follow in cases on the small claims track but note that the track is not decided until allocation. Therefore, the costs consequences would apply to a claim settled by acceptance of a CPR Part 36 offer before allocation.
  • The parties and their legal representatives should consider at all key stages whether a CPR Part 36 offer should be made, accepted, withdrawn or revised.
  • A CPR Part 36 offer will be treated as “without prejudice except as to costs”; therefore the trial judge must not be told about it until the question of liability and quantum has been decided. It is advisable to ensure that any “without prejudice” correspondence between the parties is not filed until the appropriate time.
  • An offer may be made solely in relation to liability. This will be based on the apportionment of liability.
  • Part 36 offers can be made in relation to counterclaims and other additional claims under CPR Part 20 i.e. a claim for indemnity or contribution against a third party.
  • A CPR Part 36 offer can be made in any kind of claim, whether or not the claim is for the payment of money. It can apply to the whole or part of the claim or to an issue that arises in it.
  • Any party may make an offer to settle at any stage in legal proceedings in whatever way it wants. A CPR Part 36 offer can be made before the commencement of proceedings but note it is arguable as to whether the costs consequences apply.
  • A CPR Part 36 offer constitutes one of the most important tactical steps which a party can take during the course of legal proceedings. It provides a useful means of putting pressure on the opponent to settle a case and protecting, to some extent, your position on costs.

    • Pre-Action Protocol for Personal Injury Claims

  • Where the defendant has admitted liability the claimant should send to the defendant a schedule of special damage and loss at least 21 days before any court proceedings are issued.
  • If the defendant admits liability before proceedings are issued any medical reports obtained by the claimant under the Protocol should be disclosed. The claimant should delay the issue of proceedings (for judgement) for 21 days from disclosure of the report to enable the parties to consider settlement.
  • You are required under the Personal Injury Pre-action Protocol to consider whether the claimant has reasonable needs that could be met by rehabilitation treatment or other measures. The Rehabilitaion Code outlines the issues that need to be considered.
  • Where the defendant does not object to the instruction of the claimant's nominated expert it shall not be entitled to rely on its own expert evidence unless the claimant agrees or the court gives permission.
  • If an objection is raised to the instruction of any nominated experts, the parties may then instruct experts of their own choice. The court will consider whether either party acted unreasonably when the question of costs falls to be determined. The court has the discretion to impose costs sanctions.
  • Before a party instructs an expert the other party should be provided with a list of names of one or more experts in the relevant discipline who are considered suitable.
  • The claimant is required to provide a schedule of special damages with supporting documents, as soon as practicable. You should press for this information to ensure that the flow of information is not just one way!
  • Under the Protocol you are not permitted to charge for providing copy documents to the claimant.
  • If liability is admitted but there are allegations of contributory negligence you should provide reasons supporting the allegations along with relevant documentation.
  • If you deny liability in your Protocol reply you have to disclose all documents in the defendant’s possession that are relevant to the issues in dispute. This is pre-action disclosure. If you fail to do this, expect the claimant to make an application to the court and claim the costs of doing so.
  • At the end of the Pre-action Protocol investigation period you need to reply to the claimant stating whether liability is admitted or denied. If a liability is denied, full reasons must be given.
  • Upon receipt of a letter of claim you should send an acknowledgment within 21 calendar days from the date of posting. Failure to do so entitles the claimant to issue court proceedings without further notice. Following acknowledgment you then have a maximum of 3 months (or 6 months for accidents occurring outside of the jurisdiction or where the defendant is based outside of the jurisdiction) to investigate the claim.
  • The letter of claim should contain a clear summary of the facts, an indication of the nature of any injuries suffered and of any financial loss incurred. The protocol requires the claimant to provide "sufficient information" to enable the defendant to commence investigations and broadly evaluate its risk.
  • You should invite the claimant to consider alternative dispute resolution. If the claimant refuses to explore this option the court will have regard to such conduct when determining costs. Forms of ADR include discussion, negotiation, evaluation by an independent third party and/or mediation.
  • The pre-action protocol encourages joint selection of and access to experts. The claimant should provide a list of experts together with their CVs before any appointment takes place.
  • When the claimant's solicitor requests documentation you are entitled to seek clarification on those documents and refuse disclosure if any of the documents are not relevant to the actual issues in dispute. The claimant is not allowed to use pre-action disclosure as a "fishing expedition".
  • If there has been non-compliance with the pre-action protocol a court can stay the proceedings, make adverse costs orders or deprive a party of interest on costs and/or damages.
  • A court may decide that there has been a breach of the pre-action protocol through any of the following: sufficient information not provided; refusal to consider ADR; refusal to disclose documents; failure to act within a stipulated time limit.
  • You should try to define and narrow the issues in dispute before court proceedings are issued as this assists the court in case management and can offer costs protection.
  • When in receipt of a letter of claim, ensure that it gives a detailed account of the alleged accident before conducting your investigations. Do not hesitate to press the claimant for sufficient information about the accident. You are entitled to this and, if met with a refusal, can challenge the claimant on costs in due course.
  • If the conduct of the parties pre-action falls short of what is required by the pre-action protocol the court should be asked to take this conduct into account when considering costs in any subsequent proceedings.
  • The court can dismiss court proceedings if a more appropriate means of resolving the dispute is available.
  • Litigation is to be viewed as a last resort. You are expected to explore alternatives to court proceedings. This should be raised with the claimant's lawyers and recorded on the file if dismissed.