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Civil & Commercial | England & Wales

Part 36 settlement offers and costs

Assessing a Part 36 offer by its wording, timing and costs consequences—not just the settlement figure.

KEY ANSWER

The position in brief

A Part 36 offer is a formal settlement mechanism with potential costs consequences. Its effect depends on compliance with the rules, the timing and what happens in the claim. Before making or accepting one, calculate the total financial result, including costs and interest, and check precisely which claims or issues it settles.

Legal issues

The offer must be in writing and make clear that it is under Part 36. It must identify its scope and treatment of any counterclaim. Ordinarily it specifies a relevant period of at least 21 days, but offers close to trial are treated differently. Fixed recoverable costs and other special regimes may alter the consequences. Do not assume every letter headed “without prejudice” is a Part 36 offer.

This guide concerns England and Wales.

For the wider service, see Civil and Commercial Disputes. Related decisions are covered in Summary judgment in business disputes and Unfair prejudice and minority shareholder remedies.

Evidence that matters

Collect the offer and proof of service, all amendments or withdrawals, the pleaded claim and counterclaim, interest calculation, costs information and trial date. Keep a record of authority to settle. If more than one director or insurer must approve the decision, arrange that process before the deadline becomes urgent.

Reasonable lines of enquiry

Compare three scenarios: accept now; accept later if still available; continue to judgment. For each, consider the payment, recoverable costs, costs you may owe, your own unrecovered fees and collectability. A nominally higher settlement figure can produce a worse net result if its costs terms differ.

What happens next

Acceptance ordinarily takes effect through written notice under the rules, not merely a telephone agreement. Late acceptance and failure to beat an offer at judgment can change costs exposure. Expiry of the relevant period does not automatically withdraw an offer. A court’s assessment of whether particular consequences would be unjust is not a safe substitute for evaluating the offer in time.

Immediate steps

Diary service, the relevant period and the trial date separately. Ask for clarification promptly if the scope is unclear. Do not communicate a binding acceptance until you understand what remains payable and which issues end. Keep settlement communications separate from documents intended for the trial judge on the merits.

What should you send us?

Send the full offer chain, statements of case, key evidence, current costs position and hearing dates. Tell us your settlement authority and whether a counterclaim or instalment proposal is involved.

Legal information from Theodorous. The law and procedure can change and the application of the law depends on the facts. This guide is general information, not advice on your individual case.

HOW WE CAN HELP

What Theodorous can do

We can assess validity, model the net outcomes and advise on the appropriate settlement wording. Negotiation should reflect the evidence and commercial objective, including whether payment can actually be recovered, rather than focus solely on the headline amount.

FREQUENTLY ASKED QUESTIONS

Questions before your next step

Does the offer automatically expire after 21 days?

No. The relevant period and withdrawal are different concepts. Check the offer and the Part 36 rules before assuming it has ceased to be available.

Can I make an offer before proceedings?

Part 36 can be used before proceedings, subject to its requirements. The dispute and proposed scope still need sufficiently careful definition.

Is accepting the amount the end of the costs issue?

Not always. Check the applicable costs consequences and whether a separate costs agreement or assessment is needed.

NEXT STEP

Assess a Part 36 offer

Tell us the next deadline and the documents you have received. Call 0843 636 7687 or email [email protected] to discuss the appropriate next step.

Assess a Part 36 offer