CIVIL PROCEDURE – BACK TO BASICS 6: NON-DISCLOSURE OF A PART 36 OFFER
This post is caused by some comments on Twitter this evening. A surprising number of cases where parties have, by one method or other, disclosed a Part 36 offer. This has been done by including the offers in the trial bundle, mentioning them in a witness statement or simply telling the judge on the morning of the hearing.
“I once received a beautifully prepared trial bundle with a section entitled ‘ Part 36 offers”
This had consequences.
“Our judge saw the offers and we had to burn 4 hours in Nuneaton until we could find a new judge. It was the slowest 4 hours of my life. And I’ve watched plenty of terrible football.”
This led Mark to report
“In a quantum only trial, judge asked at the beginning of the trial why the case hadn’t settled and turned to my opponent and asked if there had been any offers. Yes Sir we’ve Part 36’d at £6,500 came the reply!!”
A WITNESS STATEMENT STATING THE DEFENDANT’S OFFER WAS INADEQUATE
I had a similar experience.
“C’s witness statement had a passage complaining that D’s offer was too low and “far too inadequate” to meet his needs…”
The rule is here.
(1) A Part 36 offer will be treated as “without prejudice except as to costs”.
(2) The fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the trial judge until the case has been decided.
(There are some limited exceptions. However this is a “basic” guide. The exceptions are set out in this post.)
- No part 36 offers in the trial bundle.
- No mention in the witness statement.
- Witnesses should be told they can’t mention it.
- Advocates should know better…