Q&As

If a Part 36 offer that has been received does not satisfy the conditions of Part 36 itself and is not marked ‘without prejudice’, will the document be presumed to be privileged or may it be disclosed to the court?

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Produced in partnership with Jonathan Edwards of Radcliffe Chambers
Published on LexisPSL on 21/06/2019

The following Dispute Resolution Q&A produced in partnership with Jonathan Edwards of Radcliffe Chambers provides comprehensive and up to date legal information covering:

  • If a Part 36 offer that has been received does not satisfy the conditions of Part 36 itself and is not marked ‘without prejudice’, will the document be presumed to be privileged or may it be disclosed to the court?
  • Defective Part 36 offers
  • Use in the substantive proceedings
  • Use when costs are decided
  • Conclusion

If a Part 36 offer that has been received does not satisfy the conditions of Part 36 itself and is not marked ‘without prejudice’, will the document be presumed to be privileged or may it be disclosed to the court?

This Q&A states the position as at 6 June 2019.

Defective Part 36 offers

CPR 36 is a ‘self-contained procedural code’. An offer made in accordance with the provisions of CPR 36 will have prescribed consequences depending on whether and when it is accepted or, if it is not accepted, depending on the outcome at trial. If the offer does not conform to the mandatory requirements of CPR 36.5, then even if the offer purports to be made pursuant to Part 36, the prescribed consequences will not apply.

An offer expressed to be a Part 36 offer should be construed as far as reasonably possible so as to comply with the requirements: see C v D. However, that does not mean that if there really is an inconsistency it can be glossed over. In James v James, the offer contained wording which was at slight variance with the costs consequences prescribed by CPR 36.13; it was argued that the offer should be construed so as to comply, but that argument failed.

For the purposes of this Q&A it is assumed that the offer does not satisfy the requirements and

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