Limited circumstances to depart from the Normal Part 36 Costs Rules following hearings at Court….

In Blog by AAH

What is a Part 36 offer?

A Part 36 Offer is an offer to try and settle a claim.


Who can make a Part 36 offer?

The offer can either  be made by r the Claimant (the person making the claim) or the Defendant (who the claim is being made against) during the duration of a claim and can be on the issue of liability or the valuation of the claim.

This means that when an offer to settle the claim is made, the party making it does not always necessarily admit liability. A part 26 Offer can  only be accepted in the 21 day window after it was made. After this time has elapsed the party making the offer has the right to withdraw it.

Hafezis Comments; When Part 36 offers are made to settle a case before trial, which are not in fact accepted and thus the trial goes ahead, certain consequences apply in relation to recovery of both the Claimant’s and Solicitors costs from the date the offer expires until the date of trial. In short Part 36 under the Civil Procedure Rules allows the Defendant to claim back any costs incurred since the the expiry of the offer (i.e. 21 days after it was made) until the date o trial, from the Claimant (person making the personal injury claim). The Claimant’s own solicitors are also entitled to their costs for the same period if indeed they had advised the Claimant to accept the offer and the Claimant refused, against their advice. However the Court has authority to depart from this rule and award the Claimant his costs throughout, i.e. he is not responsible for any costs incurred after the expiry of the offer. But such an approach will only be applied by the Court in limited circumstances and is much dependant on the facts which warrant it to depart from the normal rule. The case below is a perfect example of when a Court will do so, based on the fact that the Part 36 Offer to settle the case was made before court proceedings commenced and also importantly at a time when the prognosis of the child’s injuries were uncertain.

 

SG v HEWITT

A six year old child was injured in a road traffic accident and sustained a severe head injury. Experts were unable to predict the impact of the injury until the child was older despite maintaining  scans, so a claim could not be made on behalf of him. As an adult, the injured party sought action against the driver of the car that had caused his injury. The driver made a pre-action Part 36 offer as a full and final settlement which was accepted..