CLARIFICATION OF A PART 36 OFFER HAS A MAJOR EFFECT ON COSTS
CPR 36.8 STATES “(1) The offeree may, within 7 days of a Part 36 offer being made, request the offeror to clarify the offer”. In Bailes -v- Bloom (23/11/2015, Simler J QBD)* the fact that clarification had been provided had a major impact upon the order for costs.
- A Part 36 offer had to be read in conjunction with clarification that was given.
- The defendant had made a Part 36 offer which was higher than the Part 36 offer which the claimant had later made and which had been accepted.
- It was unreasonable for the defendant to pay costs beyond 21 days after its first offer.
- If there is an ambiguity in the terms of a Part 36 offer it is wise to seek clarification.
- The overall effect of a Part 36 offer may well be read in conjunction with any clarification given.
- Prior to the issue of proceedings the defendant made a Part 36 offer of £200,000.
- The offer letter said it “did not take into account any counterclaim.”
- The claimant sought clarification and the defendant stated that it did not intend to bring a counterclaim.
- The claimant rejected the offer and issued proceedings.
- The defendant filed a defence and counterclaimed for a declaration as to what was said in the defence was correct.
- The claimant then served a Part 36 offer that it would accept £185,000.
- This offer was accepted by the defendant out of time.
- When the issue of costs was before the Master she declined to order that the claimant pay the defendant’s costs from 21 days after the defendant’s offer.
- The subsequent clarification of the offer by the defendant was something that had to be taken into account.
- After the defendant had given clarification of the offer the claimant had all the information needed to understand the valuation.
- The defendant had invoked the protection of Part 36 at an early stage to avoid costs.
- The claimant had made a lower offer and had chosen not to accept the earlier offer.
- It was unjust for the defendant to pay costs past the 21 day period following its first Part 36 offer.
*Reported on Lawtel. This post comes from the Lawtel summary.
- Costs where a claimant accepts a Part 36 offer late: two cases where the claimant came to grief
- Another case where there was an invalid Part 36 offer
- Is this a Part 36 offer I see before me? That’s an important question
- How relevant are Part 36 offers to issue based orders?
- Knowing the risks and advantages for the claimant in the new Part 36.
- The costs consequences of Part 36 offers: do they always apply? The cases in detail.
- Costs consequences of Part 36 offers: some interesting examples
- Costs, conduct, Part 36 and the “Winning Party”.
- Interest and costs when a claimant beats their own Part 36 offer.
- Costs of £7 million: Part 36 bites hard on claimants who cleared a first hurdle but fell at the second.
- Claimant beats own Part 36 offer and receives an additional £75,000 in damages.
- The dangers of a Part 36 offer: Claimant pays three times more in costs than he receives in damages.
- Another example of a successful defendant not recovering all of its costs (and of the advantages of a Part 36 offer).
- Percentage costs orders after a claimant beats their own Part 36 offer: a High Court decision.
- Very important decision on Part 36 offers, assessment of costs and additional amounts when offers not beaten.
- Increased interest and costs after claimant beats its own Part 36 offer.
- Part 36 offer does not override the need to serve the claim form.