Trick or Treat!!
Solicitors are not known for their sense of humour. In fact, it’s usually assumed that the only thing they are interested in is money. However, I can prove that this is not the case. Who else but a solicitor could come up with the concept of a settlement process, which can either be an escape route from expensive litigation, or something that can drag you into an even bigger mess. Nevertheless, a solicitor (or probably a group of solicitors) came up with the wonderful Part 36 process, which is supposed to help and encourage the parties to settle disputes. In the right hands it can save people thousands and is more essential than a mountain of candy on Halloween. In the wrong hands it can cost more than the original dispute would have done and can be more dangerous than a 4 year old with a pumpkin and a knife.
Whether you are Claimant or Defendant, the chances are that you will be encouraged to consider trying to settle the claim, and you may hear about “part 36” or “Calderbank offers”. You are probably wondering what kind of witchcraft this is. Well, both a Calderbank offer and a Part 36 offer are a means of making offers to settle, to avoid going to court or resorting to casting spells.
Both types of offer are made on a without prejudice basis, which just means that the communication will not be seen by the court until the end of the trial, judgment has been given, and we are just arguing over costs. At that point, if your letter was a genuine attempt to settle, it can be shown to the Judge, in support of a claim for a better costs award than would otherwise have been the case.
However, unlike a Calderbank offer, a Part 36 offer must follow very strict rules, which, if not followed correctly can render the whole process more redundant than a Halloween mask on Christmas day. The advantage, however, of a Part 36 offer is that if you get it right, the court must give you favourable treatment on costs, whereas with a Calderbank offer, it is all still at the Judge’s discretion, and no amount of threats to thrown eggs at his door will make him change his mind.
If you are involved in a dispute, and you appreciate the benefits of trying to reach a commercial settlement but need some guidance on how to avoid things going bump in the night (or in court) drop us a line at firstname.lastname@example.org.
Kleyman & Co Solicitors. The full service law firm. Spookily clever advice.