Legal Cost Specialists

Part 36

Part 36 offers in detailed assessment – Best v Luton & Dunstable Hospital NHS Foundation Trust

By on May 21, 2021 | 0 comments

The costs subcommittee of the Civil Procedure Rule Committee (CPRC) is apparently due to consider whether it should be possible to make Part 36 offers in relation to the costs of detailed assessment. This follows the recent decision of Master Leonard in Best v Luton & Dunstable Hospital NHS Foundation Trust [2021] EWHC B2 (Costs) whereby he concluded a Part 36 offer could not be made in respect of the costs of the detailed assessment proceedings (although Part 36 offers can clearly be made in respect of the costs claimed in the Bill). It will be a missed opportunity if the CPRC considers this narrow issue alone. Part 36 offers in detailed assessment proceedings create a unique imbalance between receiving parties and paying parties. Normally, the Part 36 benefits to claimants will only crystalise if a claimant wins on a Part 36 offer at trial.  In relation to substantive matters, there is the process of disclosure.  By the time a matter reaches trial, and usually long before then, both parties will have received disclosure of all relevant evidence and documents from the other side and will therefore be on a broadly equal footing in terms of considering the reasonableness of any Part 36 offers.  The Part 36 sanctions therefore bite when a defendant has failed to accept a reasonable offer in circumstances where they were in a fair position to judge the reasonableness of that offer. In detailed assessment proceedings, the receiving party is treated as the claimant for the purposes of Part 36.  However, unlike in substantive proceedings, there is no disclosure process to the paying party of any kind during detailed assessment proceedings. A paying party is required, for example, to consider the reasonableness of the number of communications and attendances on the claimant without sight of any of those communications or attendance notes.  A paying party is required to consider the reasonableness and quantum of advices from, and conferences with, counsel, often with no information from the Bill or fee notes as to what they related to, much less copies of the advices or attendance notes themselves.  And on it goes. Paying parties are at a material disadvantage to the usual position that arises when Part...

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Part 36 offers in costs proceedings

By on Jul 29, 2013 | 50 comments

The new CPR introduced Part 36 offers into detailed assessment proceedings and I am now starting to see the first Part 36 offers coming through. (I’ll ignore for the moment the fact that a number of these don’t count as detailed assessment proceedings had already been commenced before 1 April 2013.) I’ve never seen so many wholly defective Part 36 offers in such a short period of time. Most of these don’t even come close to being valid Part 36 offers. I see an opportunity for Professor Dominic Regan not to offer his usual masterclass in Part 36 offers but rather an idiot’s guide for beginners. But then, I suppose those drafting these documents don’t (yet) realise they are defective and don’t know they need remedial help....

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Reversal of Carver v BAA

By on Sep 6, 2011 | 0 comments

The 57th Update to the Civil Procedure Rules (who remembers the good old days of the 16th Update?) introduces changes in a number of areas. Most of these come into force on 1 October 2011. The first one relevant to costs law is the amendment to Part 36 formally reversing Carver v BAA. The change being: In Part 36, after rule 36.14(1) insert—“(1A) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, “more advantageous” means better in money terms by any amount, however small, and “at least as advantageous” shall be construed accordingly.”....

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Carver v BAA – Winning at any cost?

By on Aug 15, 2011 | 4 comments

A recent comment on a LinkedIn discussion forum raised the issue of whether the proposed changes to the Part 36 rules and the formal reversal of Carver v BAA were sensible. The proposed changes will make clear that where a money offer is beaten at trial, by however small a margin, the costs sanctions applicable under CPR 36 will apply. It will be remembered that this was one of Lord Justice Jackson’s main proposals. But wait a moment. LJ Jackson also believes that recoverable costs should be limited to what is proportionate to the amounts at stake. Surely this should apply equally when there is an offer on the table. In the case of Carver, even if we accept that a claimant who beats a defendant’s offer by £51 has achieved a more advantageous outcome, surely the question should still be asked as to whether the further costs incurred to recover the extra £51 are proportionate. What additional costs would be proportionate to throw at a case to get an extra...

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Gibbon v Manchester City Council

By on Sep 16, 2010 | 0 comments

The legal press has started to catch up with the importance of the Court of Appeal’s recent decision in Gibbon v Manchester City Council [2010] EWCA Civ 726) but I doubt all civil litigators have done so. This decision makes clear that basic contract law principles do not apply to the Part 36 regime.  A Part 36 offer remains open for acceptance until written notice is served withdrawing or changing the terms of the offer (CPR 36.9(2)). (Although see CPR 36.9(3).) This means that an offer remains open for acceptance regardless of express or implied rejection of the offer by the other side and regardless of any counter-offers made and regardless of the fact that the offeror has subsequently made a different offer.  It goes without saying that the offer also remains live despite material changes in the claim – such as fresh medical evidence becoming available. Now, if there are any practitioners who have not acted on this decision: ACT NOW! Review all your cases to see what Part 36 offers were made during the claim but have not been withdrawn or changed.  If it is the other side’s offer, considering whether to accept it now. If it is you own offer, consider whether you wish it to remain live. Going forward, it is crucial to keep at the front of your mind any Part 36 offers that have been made during the life of the claim and to review carefully on every occasion there is a development in the claim. The scope for a professional negligence claim if you fail to accept/withdraw an offer, possibly made several years earlier, is frightening. There are a couple of other points to bear in mind.  An offer that is expressed to be open for acceptance for only a limited period is not treated as a Part 36 offer.  If a Part 36 offer is withdrawn it will be treated as though it was never a Part 36 offer. This second issue raises its own problems.  Suppose a defendant makes a Part 36 offer of £500,000. Offer remains open for two years. Subsequently the defendant obtains surveillance evidence showing clear exaggeration, withdraws the offer and makes a fresh Part 36 offer...

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