PART 36 OFFER clear whether it is intended to be a claimant’s or def’s
offer.
36.2 SCOPE OF SECTION
(2) nothing prevents a party making an offer to settle in
whatever way that party choose, but if the offer is not made in
accordance with 36.5, x have consequences specified in the
section
(3) Part 36 offer may be made in respect for whole/ part of/
any issue that arises in
(a) A claim, counterclaim/ any additional claim or
(b) An appeal/ cross appeal from decision made at trial
● 36.2(2) preserves the right to make a settlement offer
by way of Calderbank or in any other way.
● Calderbank offer is made by letter written ​without
prejudice save as to cost/ without prejudice but
subject to an express reservation of the right to
refer to the letter on issue of costs should the claim
proceed to judgment​.
● Existence of Calderbank offer x equate to Part 36 offer.
Non compliant offers will not attract consequences
specified in 36.13, 36.14, 36.15 and 36.17, but must be
taken into account in the exercise of court’s discretion
pursuant to Part 44.
● In defending against FRAUDULENT claim, def could
make Calderbank offer to settle the GENUINE PART
of the claim on terms that the claimant pay the def’s
costs incurred in respect of fraudulent/ dishonest
aspects of the claim in​ INDEMNITY BASIS​.
● When making an offer in a case concerning
counterclaim or additional claim, important to make
● 36.2(3) clarifies that Part 36 offers can be made only in
respect of appeal/ cross appeal from a decision made
at trial. Part 36 offers ​CANNOT be made in respect of
interlocutory appeals and parties ​will have to fall
back on Calderbank offers​.
● Fundamental defects, such as failure to specify at all a
period of not less than 21 days, will preclude an offer
being treated as a Part 36 offer. Offer that failed to
comply with mandatory requirements of 36.5(1) was
NOT a Part 36 offer.
36.3 DEFINITIONS
(a) Party who makes an offer is the ‘OFFEROR’
(b) Party to whom an offer is made is the ‘OFFEREE’
(c) Trail means any trial in a case whether it is a trial of
ALL ISSUES/ A TRIAL OF LIABILITY, QUANTUM/
some other issue in the case
(d) Trial is ‘in progress’ from the time when it starts until
the time when JUDGMENT IS GIVEN/ handed down
(e) Case is ‘decided’ when ALL issues in the case have
been DETERMINED, whether at one/ more trial.
(f) Trial judge includes the judge allocated in advance to
conduct a trial
(g) Relevant period means
(i) in the case of an offer made ​NOT LESS THAN 21
DAYS BEFORE TRIAL​, period specified under 36.5(1)/ such
longer period as parties agree
(ii) otherwise, period up to ​THE END OF SUCH TRIAL​.
36.4 APPLICATION OF PART 36 TO APPEALS
(1) Except where Part 36 offer is made in appeal
proceedings, it shall have the consequences set out in
this section only in relation to costs of proceedings in
respect of which it is made and not in relation to the
costs of any appeal from a decision in those
proceedings.
MAKING OFFERS
36.5 FORM AND CONTENT OF PART 36 OFFER
(1) Part 36 offer MUST
(a) Be in ​WRITING
(b) Make clear that it is ​MADE PURSUANT TO PART 36
(c) SPECIFY PERIOD of NOT LESS THAN 21 DAYS
within which def will be liable for claimant’s costs in
accordance with 36.13 of offer is accepted.
(d) State whether it relates to the ​WHOLE OF THE
CLAIM/ PART OF IT/ TO AN ISSUE that arises in it
and if so to which part/ issue AND
(e) State whether it takes into account any counterclaim
(2) Para (1)(c) x apply if offer is made LESS THAN 21
DAYS BEFORE​ the start of trial
(3) …
(4) A part 36 offer which offers to pay/ offers to accept a
sum of money will be treated as inclusive of all
INTEREST until
(a) The date on which the period specified under
36.5(1)(c) expires or
(b) If 36.5(2) applies, a date 21 days after the date the
offer was made
● Clarity is required and if given will avoid the need for an
application for clarification under 36.8
● Para (1)(c): period stated is the RELEVANT PERIOD​.
Counterclaim and additional claims may be treated as
claims with the consequence that, on proper
construction of para (1)(c), a def may make a
claimant’s Part 36 offer on his counterclaim, which, if
accepted, would render the claimant liable for the costs
of the counterclaim.
● Offer that x comply with mandatory requirement of 36.5
will not attract usual Part 36 consequences but the
court will TAKE INTO ACCOUNT such an offer when
exercising its discretion as to costs.
● Where claimant offer x make payment of costs by def a
condition of his offer, it would be arguable that the
requirement in 36.5(1)(c) was not satisfied and offer is
not a valid Part 36 offer
● GR is that Part 36 offer should be made at least 21
days before the start of trial. Offers can be made later
but
(a) 36.5(2) removes obligation to specify a period
of at least 21 days pursuant to 36.5(1)(c)
(b) Relevant period in such cases is up until the
end of the trial although permission will be
required to accept offer after the start of trial
(c) No automatic costs order upon acceptance of
later offer, court must decide the appropriate
costs order if the parties cannot agree the
liability for costs
 (d) Late offers x attract the usual Part 36
consequences upon judgment unless court
abridges time under 36.17(7)(c)
36.6 PART 36 DEF’S OFFER
(1) Subject to 36.18(3) and 36.19(1), part 36 offer by def to
pay a sum of money in settlement of a claim must be
an offer to pay a single sum of money
(2) Def’s offer that includes an offer to pay all/ part of the
sum at a date ​later than 14 days following the date
of acceptance will not be treated as Part 36 offer
unless offeree accepts the offer.
36.7 TIME WHEN PART 36 OFFER IS MADE
(1) Part 36 offer may be made at any time, including
BEFORE THE COMMENCEMENT OF
PROCEEDINGS
(2) Part 36 offer is made when IT IS SERVED on the
offeree
● Pre issue Part 36 offer bears the usual Part 36
consequences upon acceptance after issue/ upon
judgment being given. Such pre action costs will not
include costs of prior adjudication proceedings.
● When Part 36 offer is BOTH MADE AND ACCEPTED
before proceedings are commenced, 36.13 and 36.14
have no effect since they are dependent upon there
being an extant proceedings. Parties wanting to make
Part 36 offers in advance of proceedings should do so
in terms whereby offer expressly states that it is made
in the vasus that in the event of acceptance before
commencement of proceedings, costs provisions of
Part 36 will apply, thereby binding those terms into any
settlement contract.
● Alternatively, claimant would need to seek agreement
that def pay his costs. Either way claimant would need
to bring costs only proceedings under Part 8.
36.8 CLARIFICATION OF PART 36 OFFER
(1) Offeree may within ​7 DAYS OF PART 36 OFFER
BEING MADE​, request the offeror to clarify the offer
(2) If offeror x give clarification requested under (1) within
7 days of receiving the request, offeree may, ​UNLESS
THE TRAIL HAS STARTED​, apply for an order that
offeror do so.
(3) If court makes an order under para (2), it must specify
the date when part 36 offer is to be treated as having
been made.
● Absence of info and conduct of parties in respect of
giving/ refusal of info under this rule may be taken into
consideration when the court is considering departing
from the usual Part 36 consequences after judgment.
● Parties must be provided with info which they require in
order to assess whether to make/ accept an offer.
Clarification given may be important in assessing
whether Part 36 offer is effective.
36.9 WITHDRAWING/ CHANGING TERMS OF PART 36
OFFER GENERALLY
 (1) A Part 36 offer can only be withdrawn/ its terms
changed, if the offeree has ​NOT PREVIOUSLY
SERVED NOTICE OF ACCEPTANCE​.
(2) Offeror withdraws the offer/ changes its terms by
serving written notice of withdrawal/ change of
terms in offeree
(3) Subject to 36.10, such notice of withdrawal/ change of
terms takes effect when it is SERVED on the
OFFEREE.
(4) Subject to (1), ​AFTER EXPIRY OF RELEVANT
PERIOD
(a) Offeror may withdraw offer/ change its terms without
the permission of the court
(b) Offer may be ​AUTOMATICALLY withdrawn in
accordance with its terms
(5) Where offeror changes the terms if Part 36 offer to
make it ​MORE ADVANTAGEOUS​ to the offeree
(a) Such improved offer shall be treated, not as the
withdrawal of original offer but as the making of a new
Part 36 offer on the improved terms AND
(b) Subject to 36.5(2), the period specified under
36.5(1)(c) shall be 21 days/ such longer period
identified in the written notice referred to in (2)
36.10 WITHDRAWING/ CHANGING THE TERMS OF PART
36 OFFER BEFORE EXPIRY OF THE RELEVANT PERIOD
(1) Subject to 36.9(1), rule applies where offeror serves
notice BEFORE expiry of RELEVANT PERIOD of
withdrawal of offer/ change its terms to be LESS
advantageous to offeree
(2) Where this rule applies
(a) If offeree HAS NOT served notice of acceptance of
original offer by expiry of relevant period, the offeror’s
notice has effect on the expiry of that period AND
(b) If offeree serves notice of acceptance of original offer
before expiry of relevant period, that ​ACCEPTANCE
HAS EFFECT unless offeror applies to the court for
permission to withdraw the offer/ change its terms
(i) within 7 days of offeree’s notice of acceptance or
(ii) If earlier, before first day of trial
(3) On an application under para (2)(b), court ​MAY GIVE
PERMISSION for original offer to be withdrawn/ its
terms changed if satisfied that there has been a
CHANGE OF CIRCUMSTANCES since making of
original offer and that it is in the ​INTEREST OF
JUSTICE​ to give permission
● Part 36 offer could be withdrawn or its terms changed
to be less advantageous to the offeree, without the
permission of court if it were done by service of written
notice on the offeree by the offeror after EXPIRY OF
RELEVANT PERIOD but only WITH PERMISSION of
court BEFORE the expiry of that period.
● Under 36.9, provided that offer has not been accepted,
it can be withdrawn/ amended by serving notice.
● Application by offeror for court’s permission under
36.10(2)(b) must be made under Part 23 and for the
 purpose of ensuring that offer x improperly disclosed,
must be dealt with by a judge other than the trial judge.
● Withdrawn offers x enjoy the usual Part 36
consequences following judgment. The usual Part 36
consequences x apply where the terms of an offer
have been changed to make it LESS
ADVANTAGEOUS offer, but withdrawn and amended
offer remain relevant to proper exercise of court’s
discretion in relation to costs pursuant to Part 44.
36.11 ACCEPTANCE OF OFFER
(1) Part 36 offer is accepted by SERVING WRITTEN
NOTICE OF ACCEPTANCE on the offeror
(2) Subject to (3) and (4) and 36. 12, Part 36 offer may be
accepted at ANY TIME (whether offeree has
subsequently made a different offer), unless it has
been WITHDRAWN.
(3) Court’s ​permission REQUIRED to accept Part 36 offer
where
(a) 36.15(4) applies
(b) 36.22(3)(b) applies
(c) Apportionment is required under 41.2A or
(d) Trial is ​IN PROGRESS
(4) Where court gives permission under (3), unless all the
parties have agreed costs, the court must make an
order dealing with costs and may order that costs
consequence set out in 36.13 apply.
● Offeree’s rejection of Part 36 offer x render it incapable
of later acceptance. 36.11(2) expressly provides that a
part 36 offer may be accepted even if the offeree has
since made a counter offer. Onus is on offeror to
withdraw his offer in accordance with Part 36 if he no
longer wishes it to be accepted.
● Where after an offer was made in respect of some
claim/counterclaim, such claim/ counterclaim is struck
out/ discontinued, offer ceases to be effective and
cannot be accepted since part 36 is concerned with the
settlement of extant claims
36.13 COST CONSEQUENCES OF ACCEPTANCE OF
PART 36 OFFER
(1) Subject to (2) and (4) and 36.20, where Part 36 offer is
accepted ​WITHIN THE RELEVANT PERIOD​, the
claimant will be entitled to the COSTS OF
PROCEEDINGS (including their recoverable PRE
ACTION COSTS) ​UP TO THE DATE ON WHICH
NOTICE OF ACCEPTANCE WAS SERVED on the
offeror.
(2) Where—
(a) a defendant’s Part 36 offer ​relates to PART ONLY
of the claim​; and
(b) at the time of serving notice of acceptance within
the relevant period the ​CLAIMANT ABANDONS the
BALANCE​ of the claim,
the claimant will only be entitled to the ​costs of such
part of the claim unless the court orders otherwise​.
(3) Except where the recoverable costs are fixed by these
Rules, costs under paragraphs (1) and (2) are to be
assessed on the STANDARD BASIS if the amount of
costs is NOT AGREED.
(4) Where—
(a) a Part 36 offer which was made ​LESS THAN 21
DAYS before the start of a trial is accepted​; or
(b) a Part 36 offer which relates to the whole of the
claim is accepted ​AFTER EXPIRY OF RELEVANT
PERIOD​; or
(c) subject to paragraph (2), a Part 36 offer which does
not relate to the whole of the claim is ​ACCEPTED AT
ANY TIME​,
the liability for costs ​MUST be determined by the
36.14 OTHER EFFECTS OF ACCEPTANCE OF PART 36
COURT unless the parties have agreed the costs​.
OFFER
(5) Where paragraph (4)(b) applies but the parties cannot
agree the liability for costs, the court MUST, unless it
considers it ​UNJUST TO DO SO​, order that—
(a) the claimant be awarded costs UP TO THE DATE
on which the ​RELEVANT PERIOD EXPIRES​; and
(b) the offeree to pay the offeror’s costs for the period
FROM THE DATE OF EXPIRY OF RELEVANT
PERIOD TO DATE OF ACCEPTANCE​.
(6) In considering whether it would be ​UNJUST ​to make
the orders specified in paragraph (5), the court MUST
take into account ​ALL THE CIRCUMSTANCES OF
THE CASE​ including the matters listed in rule ​36.17(5)​.
(7) The claimant’s costs include any costs incurred in
dealing with the defendant’s counterclaim if the Part 36
offer states that it takes it into account.
● GR is that where Part 36 offer is accepted within the
relevant period, the claimant will be entitled to the costs
of proceedings up to the date on which notice of
acceptance was served on the offeror. Costs of
proceedings include pre action costs.
(1) If Part 36 offer is ACCEPTED, the claim will be
STAYED
(2) In the case of acceptance of Part 36 offer which relates
to the ​WHOLE CLAIM​, the stay will be upon the terms
of the offer
(3) If Part 36 offer which relates to ​PART only of claim is
accepted, the claim will be stayed as to that part upon
the terms of the offer
 (4) If the approval of the court is required before a
settlement can be binding, ​any stay which would
otherwise arise on acceptance of Part 36 offer will
take effect only when that approval has been given​.
(5) Any stay arising under this rule will not affect the power
of the court
(a) To enforce the terms of Part 36 offer
(b) To deal with any question of costs (include
interest on costs) relating to proceedings
(6) Unless parties agree otherwise in writing, where Part
36 offer that is/ include an offer to pay/ accept a single
sum of money is accepted, that sum must be paid to
the claimant within ​14 DAYS​ of the day of
(a) ACCEPTANCE​ or
(b) Order when court makes an order under 41.2/ 41.8
unless court orders otherwise
(7) If such sum is ​NOT PAID WITHIN 14 DAYS of
acceptance of offer/ such period as has been agreed,
the claimant ​MAY enter ​JUDGMENT for the unpaid
sum
(8) where
(a) A part 36 offer which is NOT AN OFFER to which para
(6) applies is accepted AND
(b) A party alleges that the other party has not honoured
the terms of the offer
That party ​MAY APPLY to enforce the terms of the offer
WITHOUT THE NEED FOR A NEW CLAIM​.
● Where approval of court is required before settlement
can be binding as in the case of claim involving ​CHILD/
PROTECTED PARTY​, the stay takes effect only when
the court has approved the settlement
● 36.14(8) deals with the enforcement of non monetary
offers. It allows party to apply to enforce such non
monetary terms of settlement without the need for a
new claim.
36.15 ACCEPTANCE OF PART 36 OFFER MADE BY ONE/
MORE, BUT NOT ALL DEF
(1) Rule applies where claimant wishes to accept Part 36
offer made by ​ONE/ MORE​, ​BUT NOT ALL of a
number of def(s)
(2) If def(s) are sued JOINTLY or in the ALTERNATIVE,
claimant MAY accept the offer if
(a) Claimant discontinues the claim against those def who
have not made the offer AND
(b) Those def(s) give ​WRITTEN CONSENT to acceptance
of the offer
(3) If claimant alleges that def have ​SEVERAL LIABILITY​,
claimant may
(a) Accept the offer AND
(b) Continue with the claims against the other def(s) if
entitled to do so
(4) In ​ALL OTHER CASES​, claimant ​MUST apply to the
court for permission to accept the Part 36 offer
36.16 RESTRICTION ON DISCLOSURE OF OFFER
 (1) Part 36 offer will be treated as ‘​WITHOUT PREJUDICE
EXCEPT AS TO COSTS​’
(2) The fact that 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
(3) Para (2) x apply
(a) Where ​DEFENCE OF TENDER BEFORE CLAIM has
been raised
(b) Where proceedings have been ​STAYED under 36.14
following ​ACCEPTANCE​ of part 36 offer
(c) Where offeror and offeree ​AGREE IN WRITING that it
should not apply
(d) Where, although the case has not been decided
(i) any part of/ issue in the case has been decided AND
(ii) Part 36 offer relates only to parts/ issues that have
been decided
(4) In a case to which (3)(d)(i) applies, ​trial judge
(a) May be told whether or not there are Part 36 offers
other than those referred to in para (3)(d)(ii), but
(b) MUST NOT be told the ​TERMS of any such offers
unless any para (3)(a) to (c) applies
● (3)(d) and (4): no restriction on telling the trial judge at
the end of preliminary trial about the terms of any Part
36 offers relating only to issues that have been decided
and about the existence of any other Part 36 offer
● GR restricts disclosure to trial judge and x prevent
disclosure to a judge dealing with interlocutory matters
in the course of which it may be both necessary and
desirable for the judge to know of offers made
36.17 COSTS CONSEQUENCE FOLLOWING JUDGMENT
(1) Subject to 36.21, rules applies where upon judgment
being entered
(a) CLAIMANT FAILS to obtain a judgment ​MORE
ADVANTAGEOUS​ to than a def’s Part 36 offer
(b) Judgment ​AGAINST ​DEF is AT LEAST AS
ADVANTAGEOUS to the claimant as the proposal
contained in ​CLAIMANT’S​ Part 36 offer
(2) In relation to any money claim/ money element of
claim, ‘more advantageous’ means better in money
terms by ANY AMOUNT, however small and at least as
advantageous shall be construed accordingly
(3) Subject to (7) and (8), where para (1)(a) applies, the
court MUST, unless it considers it UNJUST to do so,
order that the DEF is entitled to
(a) COSTS (including any recoverable pre action costs)
from the date on which the ​RELEVANT PERIOD
EXPIRED​ and
(b) INTEREST​ on those costs
(4) Subject to (7), where para (1)(b) applies, court MUST,
unless considers UNJUST to do so, order that claimant
is entitled to
(a) INTEREST ON THE WHOLE/ PART OF ANY SUM OF
MONEY (exclude interest) awarded, at a rate x
 exceeding 10% above base rate for some/ all of the (6) Where court awards interest under this rule and also
period starting with date on which the RELEVANT awards interest on the same sum/ for the same period
PERIOD EXPIRED under any other power, total rate of interest MUST
(b) COSTS (including any recoverable pre action costs) on NOT exceed 10% above base rate.
INDEMNITY BASIS from the date on which relevant (7) Para (3) and (4) x apply to Part 36 offer
period expired
(c) INTEREST on those costs at rate x exceeding 10% (a) Which has been ​WITHDRAWN
above base rate (b) Which has been ​CHANGED so that its terms are ​LESS
(d) Provided that the case has been decided and there has ADVANTAGEOUS to the offeree where the offeree
not been a previous order under this sub para, an has beaten the less advantageous offer
ADDITIONAL AMOUNT, WHICH SHALL NOT (c) Made ​LESS THAN 21 DAYS before trial​, unless court
EXCEED 75K​ calculated by has abridged the relevant period
(i) the sum awarded to claimant by court or
(8) Para (3) x apply to soft tissue injury claim to which
(ii) where there is no monetary award, sum awarded to
36.21 applies
claimant by court in respect of costs
(pls refer to CPR 36.17(4)(d)) ● Later payment (after the date of Part 36 offer) was
(5) In considering whether it would be UNJUST to make made in account of both the claim generally and Part
orders in (3) and (4), court ​MUST take into account all 36 offer such that it was no longer open to offeree to
the circumstances of the case including obtain payment of offer without giving credit for
payment. There was a presumption of law that any
(a) TERMS​ of any Part 36 offer
payment on account or admission payment is also
(b) STAGE IN PROCEEDINGS when any Part 36 offer
payment on account of ant earlier Part 36.
was made, including in particular how long before trial
started the offer was made
claimant ‘s offer (36.17(1)(b) & 36.17(4))
(c) INFO AVAILABLE to parties at the time when Part 36
● Provision is not designed to punish unreasonable
offer was made
conduct but as an incentive to encourage claimant to
(d) CONDUCT OF PARTIES with regard to giving of/
make and def to accept appropriate offers of
refusal to give info for the purpose of enabling the offer
settlement.
to be made/ evaluated
(e) Whether offer was a ​GENUINE ATTEMPT to settle the
Consider unjust to do so
proceedings
 ● Party at risk is required to establish grounds for unjust and offeree faces formidable obstacles in
rendering it unjust to make the order and such must be obtaining different order
found by the court so as to deny the offeror their costs. ● Nothing inherently wrong with very high claimant offer
Question not whether the offeree had reasonable in extremely strong case, but may be prudent for
grounds for not accepting the offer as if there were claimant to explain in offer why such small discount is
some unfettered discretion as to costs, ​but to being offered for settlement.
consider whether the usual order would be
UNJUST
● Requirement to take into account all circumstances of
case enables court to take broader view in appropriate
case, to have regard to question of injustice arising
from the manner in which offeror has made use of its
costs expenditure prima facie recoverable from
unsuccessful offeree.
● If a party has not enabled another party properly to
assess whether or not to make an offer/ whether to
accept an offer which is made because of non
disclosure of material facts/ if party comes to a decision
which is different from what would have been reached
if there was proper disclosure, that is a material matter
for court to make into account in considering what
orders should be made.
Genuine attempt to settle
● (5)(e) deal with problem of claimants making very high
settlement offers (as much as 95% of value of claim)
not in genuine attempt to settle claim but to place def at
risk of indemnity costs pursuant to 36.7(4)
● If offer was merely a tactical step designed to secure
benefit of Part 36, court would not give effect to it.
● Important to remember that default rules in (3) and (4)
only to be departed from where such orders would be