Is a Part 36 Offer from both Claimant and Defendant possible?

ash_786

Hi All - I am currently going through a property dispute in which I am a joint owner and the Claimant. The matter is currently being dealt with by the courts. I did have a solicitor but due to their fees and lack of service I have been representing myself for a while now. I have previously made a Part 36 Offer via my solicitor before I started representing myself. This was for 50% net proceeds of sale plus all of the deposit. It has also been mentioned at a previous Hearing where the Judge commented that I had made " a very generous offer" so there is tracebility as it was done via a solicitor and mentioned at a Hearing. My Part 36 Offer was made months ago and the Defendant did not respond to it at all and has also refused mediation. I have not withdrawn my Part 36 Offer.
The Defendant is also representing himself. Now all of a sudden a couple of days ago the Defendant has made me a Part 36 Offer and is saying he has no record and does not know of my Part 36 Offer which was sent via my previous solicitor. His Part 36 Offer is similar but does not include the deposit paid. If I have not withdrawn my Part 36 Offer as Claimant, and the Defendant is lying (which I can prove) that he has no idea of my previous Part 36 Offer and therefore, made one to me.
* Is it possible for there to be 2 x Part 36 Offers from a Claimant and Defendant at the same time?
* My understanding was there can be only one Part 36 Offer in a case unless it has been withdrawn (which is hasn't) but the Defendant can make me a counter offer?
* If a Claimant has made a Part 36 Offer, can a Defendant make a Part 36 Offer back?

The Part 36 was dated in May-16 and the Defendants had 21 days to respond. However, in one of the points in the Part 36 it says
" if the offer is not accepted by you within period of 21 days, it may only be accepted after expiry of such time period if:
i.) The parties agree the liability for costs,
OR
ii.) with the Court's permission "

I would appreciate anyone's urgent help, I am a hardworking family man whose life savings are being robbed so am undergoing a lot of stress and need to some support.

Crazy_Jamie

ash_786 wrote: »

* Is it possible for there to be 2 x Part 36 Offers from a Claimant and Defendant at the same time?

Yes.

ash_786 wrote:

* My understanding was there can be only one Part 36 Offer in a case unless it has been withdrawn (which is hasn't) but the Defendant can make me a counter offer?

Your understanding is wrong. Either party can make a Part 36 offer. It is not unusual for a case to get to trial and for both parties to have made Part 36 offers.

ash_786 wrote:

* If a Claimant has made a Part 36 Offer, can a Defendant make a Part 36 Offer back?

Yes.

ash_786 wrote:

The Part 36 was dated in May-16 and the Defendants had 21 days to respond. However, in one of the points in the Part 36 it says
" if the offer is not accepted by you within period of 21 days, it may only be accepted after expiry of such time period if:
i.) The parties agree the liability for costs,
OR
ii.) with the Court's permission "

I would appreciate anyone's urgent help, I am a hardworking family man whose life savings are being robbed so am undergoing a lot of stress and need to some support.

It's not so much that the other side have 21 days to respond. The offer has to remain open for at least 21 days. Providing it has not been withdrawn after that it can still be accepted with some potential restrictions depending on the timing of the acceptance, and potentially with some uncertainty as to the costs consequences. You can find Part 36 of the CPR here and read it for yourself, though it can be hard going. Do you have any specific questions about that last section?

ash_786

Thank you very much for your reply. Really appreciate it. What are the costs consequences for both the Claimant and Defendant as a result of both of us having made Part 36 Offers?
The Defendants Part 36 Offer is less generous than the one I made.

Quentin

All depends on the judgement

Put simply:

If you get a win that is better than the defendant's offer you get your costs too

If you get a judgement less than the defendant's offer you end up paying costs

Crazy_Jamie

Quentin wrote: »

All depends on the judgement

Put simply:

If you get a win that is better than the defendant's offer you get your costs too

If you get a judgement less than the defendant's offer you end up paying costs

Not quite.

Part 36 doesn't apply to the small claims track, and therefore by default applies in fast track and multi track claims. The general rule on those tracks is that the loser of the litigation pays the winner's costs. The Judge does have a discretion in that regard, but generally speaking if the Claimant secures a judgment whereby the Defendant pays him money, the Claimant will be seen to have 'won' the case, and will be entitled to his costs assessed on the standard basis. So in this case, chances are if you secure a judgment in your favour you would also get your costs by default.

Part 36 changes that slightly. As Quentin has said, you need to consider the order that is made by the Judge and compare it to the Part 36 offers. A side 'beats' their offer if the terms of the order made by the Judge are more beneficial to them than the terms of their Part 36 offer. So if you receive more money than you offered in your Part 36 offer, you will 'beat' your offer. By contrast, if you receive less money than the other side's offer, they will 'beat' their offer.

If you 'beat' your offer, you are still entitled to costs but on the indemnity basis. That essentially means that when assessing your costs the Judge is more likely to award you more than if the assessment was made on the standard basis. In practice, however, the effect in this case may not be significant because you have largely represented yourself.

However, if the other side 'beats' their offer, the effect is more significant. In that case you will get the money that the Judge orders, and will also get your costs up to the date of the expiry of the offer (i.e. usually 21 days after it was made), but from that date to the trial you will usually be ordered to pay the other side's costs. Clearly that can have a huge effect on the amount of money that changes hands at the end of the case.

The costs consequences are why Part 36 offers are so important. Both sides should consider whether they have a realistic prospects of beating the other side's offer(s). This is particularly so for Claimants, because failing to beat a Defendant's Part 36 offer can cause a significant shift in the costs that are to be paid by each side. That's why in this case, you should carefully assess the other side's offer and ensure that you're likely to beat it at trial.