Dispute Resolution Unit 6 PART 36 Exam Notes, Exams of Nursing

Download Dispute Resolution Unit 6 PART 36 Exam Notes and more Exams Nursing in PDF only on Docsity! Dispute Resolution Unit 6 PART 36 Exam Notes different types of judgement and offer AY notes. PART 36 LECTURE NOTES SEE EXAM NOTES AT PG4 AND READ THROUGH THESE BEFORE ANSWERING A Q ON THIS!!! Definitions: “C”: Claimant; “D”: Defendant “Relevant Period”: The Part 36 must specify a period not less than 21 days of the date offer served during which, if the offeree accepts the offer; the defendant will pay the claimants costs under CPR 36.13. The period can be longer than 21 days if practical reasons to do so. “Split Costs”: C may expect to recover its costs from D for whole duration of dispute. However, at the point that the C was ‘in the wrong’ (last date of D Part 36 offer in relevant period); the position is reversed and C (even though won trial) has to pay the D costs. “Claim Stayed”: means that the court will not take any further action on your claim. The only action you can take is to apply to the court for the stay to be lifted. You may have to pay a fee to do this. Claim stayed as per CPR 36.14 - where P36 offer is accepted. Payment is DUE to the Claimant within 14 days of the date of acceptance – if not, judgment can be entered upon it. Summary: Part 36 aims to encourage settlement between the parties by imposing penalties for the rejection of reasonable offers to settle. Part 36 offer can be made by either party as a monetary claim to settle the claim on a payment of a lump sum. Part 36 from C is effectively a condition; Part 36 from D is a promise. The Part 36 offer is made when it is served as per CPR 6.26 and can be made using Form N242A but also can be set out in the terms of a letter C’s Part 36 offer will be for a larger amount (eg 90% of costs in PoC) than the D (who may offer 50% PoC), as the C will feel more confident than D about the claim success at trail. The earlier a party makes the Part 36 offer, more pressure is put on the other side. An early offer will maximse the time up until judgement date and therefore, maximise the impact of the consequences and length of time for interest and costs to be awarded (see Area’s 1-4 below). If neither party accepts the offers and the trial goes ahead; the judge will not be aware of the Part 36 offers made; so as to ensure they are not skewed/biased. So they will not know wheat the defendnt was willing to settle for or the claimant come down to. Wont learn about this until case decided and just looking at the costs. Why different to any other offer to settle? If you send Part 36 offer it creates a problem for the defendant because what happens in the background is a very formal type of offer, in writing which stipulates its pursuant to Part 36 rules. It gives a relevant period of greater or equal to 21 days for the defendant to accept it and states which claims are being settlemend. It all becomes very formal and the folmality and the application of the CPR to it create a problem. It provides a financial stick to berat the other side with, if they chose not to accept your offer. What to offer? The parties should be contemplating; not only are we going to trial if I don’t accept the offer, but if I’ve estimates the case’s worth incorrectly, I could end up paying even more than first anticipated. If claimant may start with 10% reduction offer, as the client probably comfortable with that amount as - CPR 36.17(1)(b) applies the TEST ‘has C has matched or beaten its own Part 36 offer at trial?’ If they have, then triggered CPR 36.17(4) for the consequences - CPR 36.17(4)) triggered apply below: o 36.17(4)(a): Interest on damages from D payable BUT when reach point at which D became ‘in the wrong’ for failing to accept C Part 36 Offer, applicable rate of interest on damages will be punitive. The rate shall not exceed 10% above the base rate. This exaggerates the interest payable on C damages. o 36.17(4)(b): the costs C receives will be on an indemnity basis (as a form of punishment). o 36.17(4)(c): allows the C to recover interest on the indemnity costs at a punitive interest rate but the rate shall not exceed 10% above the base rate. Maximum 10% applied in extreme cases only but court will use this power to punish D for needlessly drawing out proceedings. o 36.17(4)(d): D must pay a penalty described as an additional amount’ to C. Calculated as a % of the damages awarded to C – caped at £75k. Imposes further penalty of additional amount payable, based on damages awarded. - 36.17(4)(b) & 36.17(4)(c): Provides a harsh basis for assessment of costs and interests on thse costs at a punitive rate. - 36.17(4)(d): D must pay this, even in a non-money claim. If no damages to base award on, will be based on amount of costs awarded to C. - Seen as more serious. Not only time and resources of C and court wasted, but also this is extra hassle put on C though having to bring the claim in the first place when could have settled by Part 36 under reasonable offer. - Penalties for D who fails to accept Part 36 offer are more extensive and especially punitive: o Costs o damages EXAM NOTES STEP BY STEP GUIDE AND POSSIBLE ANSWERS Read question VERY carefully. - Is it asking about acceptance? - Consequences of a P36 offer at trial? - General description or something in relation to facts? - Whether client should make/accept P36 offer? o If this one, use your judgement and confirm this is a tactical point – give as much advice as possible ., o apply appply apply to facts and include clients attitude to circumstances , o concise reasoned decision one way or the other. o REMEMBER: ultimately it is the clients choice whether to act on your advie or not. Do NOT detail procedure or circumstances if not asked. STEP 1 Make note of: - how many offers have been made - who made which offer - if dates are known use them to calulate preise dates and state them in your answer eg relevant date period runs for 21 days from Offer served. If know when offer served – can work out the end of the relevant period. - if outcome at trial indicated on facts – how does it relate to the offer? - If one consequence runs to date X and then another runs from the same date X – what happens on date X istself? Do both consequences apply? Neither? Just one - which? STEP 2 MUST USE: Scenario Pattern 1 ABOVE and DRAW OUT SAME FOR YOUR FACTS: ALWAYS make a TIMELINE if both C and D have made a Part 23 offer BULLET POINT FOLLIWING DATES AT START OF ANSWER Date of Breach / Cause of action Earliest date form which interest can be awarded on damages awarded to C Date C instructed solicitor Earliest date from which the C may potentially be awarded COSTS by the court Date D instructed solicitor Earliest date from which the D may potentially be awarded COSTS by the court Day 21 for EACH offer State when offers were made (facts of q) and then last day of the relevant period (day 21) for each offer Day 22 for EACH offer day offer expires and parties become vulnerable to financial penalties for not accepting the other’s offer Judgment date Trial and judgement date – see facts of Q PART 36 EXAM ANSWER STRUCTURES NARRATIVE ANSWER FOR SCENARIO TABLE 1: THE CLAIMANT LOSES AT TRIAL ALWAYS REMEMBER In exam, write out date reference table at the top to indicate knowledge of the dates. Date of Solicitors Instructions WRITE DATES HERE Date of Part 36 Offer “ Date of expiry of Part 36 Offer “ Trial Date “ INTRODUCTION: The Claimant has failed to obtain a judgment at trail. This means that the Claimant was wrong to refuse the Defendants Part 36 Offer and continue the claim. Here CPR 36.17 (1)(A) applies. DAMAGES: The Claimant will receive none of the damages they have claimed in their Particular of Claims. COSTS: The usual rules to costs apply, this means that the loser pays the winners costs. This means that the Claimant will pay the Defendant’s costs on the standard basis from the date that the Defendant starts accruing costs [DATE] to day 21 [DATE] of the Defendant’s offer. The Claimant will have to pay their own costs from date they instructed a solicitor [DATE] to the trial date. THE EFFECT OF PART 36 ON THE COSTS: Rule 36.17(3) will apply where the Claimant loses at trial. This means that the Claimant will also pay the Defendant’s on a standard basis from the expiry of the Defendant’s Part 36 Offer day 22 [DATE] to the trial date [DATE]. The effect of the Part 36 rules means that the Claimant will pay for ALL of the Defendant’s cost on a standard basis from the date they incurred the costs to the trial date. INTERESTS: An additional effect of CPR 36.17 (3) means that the Claimant will pay interest on the Defendant’s costs usually at 1% above base rate from the expiry of the Defendant’s Part 36 Offer day 22 [DATE] to the trial date. This applies to rule outlined in Bim Kemi AB v Blackburn Chemical 2003. This is done to penalise the Claimant further for not accepting an offer which it should have. ALWAYS REMEMBER In exam, write out date reference table at the top to indicate knowledge of the dates. INTRODUCTION: The Claimant has failed to obtain a judgment at trail that is better than the Defendant’s Part 36 Offer. This means that the Claimant was wrong to refuse the Defendants Part 36 Offer and continue the claim. Here CPR 36.17 (1)(A) applies. DAMAGES: The Claimant will receive the damages they have claimed in their Particular of Claims. The Defendant will also NARRATIVE ANSWER FOR SCENARIO TABLE 2: THE CLAIMANT WINS AT TRIAL BUT THE JUDGMENT IS NOT AS GOOD AS THE DEFENDANTS OFFER Date of Solicitors Instructions WRITE DATES HERE Date of Part 36 Offer “ Date of expiry of Part 36 Offer “ Trial Date “ lOMoAR cPSD|21627597 UNIT 6 DIS RES AY NOTES PART 36 COST CONSEQUENCES P36 = Aims to encourage settlement between the parties by imposing penalties for the rejection of reasonable offers to settle. OUTCOME AT TRIAL 1. C LOSES ➔ D has won so C should have accepted D’s offer so judgment NOT more advantageous to C 2. C WINS BUT judgment secured is worse than D’s offer so is NOT more advantageous to C than D offer 3. C WINS, and judgment is: more than than D offer, BUT doesn’t beat own offer 4. C wins, and judgment is AT LEAST as advantageous to C as C own offer and beats D’s offer r.36.17(1)(a) applies r.36.17(1)(a) applies Part 36 not triggered r.36.17(1)(b) applies Damages N/A D pays C damages as in C’s PoC or as awarded by the court. D pays C damages as in C’s PoC or as awarded by the court. D pays C damages as in C’s PoC or as awarded by the court. N/A D pays C interest on damages as in C’s PoC/awarded by court. From: Cause of action To: Date of Judgment D pays C interest on damages as in C’s PoC/awarded by court. From: Cause of action To: Date of Judgment D pays C interest on damages as in C’s PoC/awarded by court. From: Cause of action To: Day 21 after C’s offer Effect of Part 36: damages N/A N/A N/A D pays C interest on damages at up to 10% + base rate From: Day 22 after C’s offer To: Date of Judgment r.36.17(3)(a)+(b) applies (below) r.36.17(4)(a)-(d) apply (below) Costs C pays D’s costs on standard basis From: D instructed solicitor To: Day 21 after D’s offer ** D pays C’s costs on standard basis From: C instructed solicitor To: Day 21 after D’s offer D pays C’s costs on standard basis From: C instructed solicitor To: Date of Judgment D pays C’s costs on standard basis From: C instructed solicitor To: Day 21 after C’s offer Effect of C pays D’s costs on standard basis From: Day 22 after D’s offer To: Date of Judgment C pays D’s costs on standard basis From: Day 22 after D’s offer To: Date of Judgment N/A D pays C’s costs on INDEMNITY basis From: Day 22 after C’s offer To: Date of Judgment Part 36: C pays INTEREST on D’s costs C pays INTEREST on D’s costs, usually at 1% + base rate. From: Day 22 after D’s offer To: Date of Judgment D pays INTEREST on INDEMNITY costs at up to 10% + base rate From: Day 22 after C’s offer To: Date of Judgment costs usually at 1% + base rate From: Day 22 after D’s N/A offer** To: Date of Judgment Page 12 of 13 lOMoAR cPSD|21627597 UNIT 6 DIS RES AY NOTES OUTCOME AT TRIAL 1. C LOSES ➔ D has won so C should have accepted D’s offer so judgment NOT more advantageous to C 2. C WINS BUT judgment secured is worse than D’s offer so is NOT more advantageous to C than D offer 3. C WINS, and judgment is: more than than D offer, BUT doesn’t beat own offer 4. C wins, and judgment is AT LEAST as advantageous to C as C own offer and beats D’s offer Other effects of Part 36 N/A N/A N/A D pays C “ADDITIONAL AMOUNT” (max of £75k) calculated as below: • 10% of first £500,000 damages • 5% of next £500,000 damages (In example: £75,000 (= maximum)) note: see table in rule 36.17 Who pays own costs? C pays all own costs from date C instructed solicitor until the Date of Judgment • C pays all own costs Day 22 after D’s offer • D pays own costs from D instructed solicitor until Day 21 after D’s offer D pays own costs from D instructed solicitor until the Date of Judgment D pays own costs from D instructed solicitor until the Date of Judgment ** Note that r.36.17(3)(b) stipulates that C will pay D’s costs from the end of the relevant period. But in column 1, because C has lost the case, it already has to pay all D’s costs. Effectively, in column 1 the only real impact of Part 36 is that C pays interest on D’s costs from the end of the relevant period ( no less than 21 days see definitions). lOMoAR cPSD|21627597 UNIT 6 DIS RES AY NOTES Dispute Resolution Unit 6 PART 36 Exam Notes different types of judgement and offer AY notes. GOODLUCK