Part 36 Offers to settle and payments into court
1st October, 2011
As of the 1st October advantageous really does mean advantageous again with the 57th Update of the CPR coming into effect. Prior to the Carver v BAA Plc Judgment in 2008 we had the situation where a Claimant avoided any cost sanctions if they beat the Defendant’s Part 36 offer by any amount. In this case the amount awarded to the Claimant was just £51 over the Defendant’s Part 36 offer, and from this ruling where it was decided that this could not properly considered to be ‘more advantageous’, we have been left with a large degree of uncertainty as to what any particular Judge would decide as being ‘advantageous’.
The Carver ruling has effectively been reversed and now any amount
awarded to the Claimant over the Defendant’s Part 36 offer is seen as advantageous. Lord Justice Jackson said that Carver had introduced “an unwelcome degree of uncertainty into the Part 36 regime” and also “tends to depress the level of settlements” due to claimant’s being wary of taking the risk of going to trial.
We should now see an increase in the number of Claimant’s taking to the courtroom, and fighting for what they perceive to be a fair settlement, over that which we have had in the last few years. Fear of falling in the uncertain grey area between the Defendant’s Part 36 offer and the judge’s idea of what is advantageous should now be fully eliminated.
The amendment inserts 1A after Rule 36.14(1) to the effect:-
“For the purposes of paragraph (1), in relation to any money claim or any 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.”