UK: New CPR Part 36 In Force

 A brand new CPR Part 36 came into force on 6 April 2015, which entirely replaced the previous provisions with new numbering.

Form and content – r36.5(b)

What constitutes a Part 36 offer is now wider. Rather than having to state on the face of the offer that it is "intended to have the consequences of Part 36", it need only "make it clear that it is made pursuant to Part 36".

As a matter of best practice, it would be useful to state "This offer is intended to have the consequences of Part 36 and is made pursuant to Part 36".

Withdrawal – r36.10

A notable change is the rules in respect of withdrawing and changing the terms of a Part 36 offer prior to expiry of the relevant period (i.e. 21 days after the offer was made).

The new rules provide that withdrawing or changing of the terms takes effect only upon expiry of the relevant period. An offeree may therefore validly accept an offer within the relevant period despite having received a notice of withdrawal or change.

Time bomb – r36.9(4)

The new rules now, for the first time, expressly provide for a Part 36 offer to contain terms which withdraw it automatically.

The wording allows for offers to be "withdrawn in accordance with its terms" and do therefore not limit the wording of the offer to specific dates, but also include events.

Such offers can be used strategically by defendants to put pressure on claimants in order to seek to compromise the claim as quickly as possible, possibly even pre-proceedings.

Advantageous terms – r36.9(5)

Changing the terms of a Part 36 offer to make it more advantageous to the offeree does not withdraw the original offer, but the second offer is to be treated as a new offer for the purposes of the relevant period.

Accordingly, if the offeree fails to beat both offers at trial, then the offeror will be entitled to seek the cost consequences from the date of the first order. Logistically, offerors must keep the numbers of offers made under close review and when seeking to withdraw all offers must be careful to explicitly state this refers to "all previous offers".

Abandoned claim – r36.13(2)

Where a defendant's Part 36 offer relates to only part of the claim and the claimant accepts that offer and abandons the balance of the claim, the claimant is entitled to its costs of the part of the claim to which the offer related.

This is an extremely useful provision to limit the defendant's costs liability, particularly for low value personal injury claims. There may be disagreement as to its applicability given that there is usually only one cause of action, which is arguably not capable of being divided into parts. However it is hard to see how the abandoning of significant separate heads of loss would not satisfy this requirement.

Genuine attempt to settle – r36.17(5)(e)

In considering whether it would be unjust to make the usual costs order, the court must take into account whether the offer was a "genuine attempt to settle the proceedings". This rule is designed to discourage parties from making purely tactical offers, however there is much uncertainty as to how this will be interpreted. Court of Appeal authority has previously held that a 95% split liability offer was a genuine attempt to settle and there is no reason to suppose this rule alters this proposition. It was stated however that a 99% liability offer would not be a genuine attempt.

The issue for defendants is how to prove that an offer is not a genuine attempt to settle. Indeed this will require access to privileged information from the claimant's solicitors which defendants are unlikely to secure. Accordingly, it will be difficult for defendants to be properly advised whether issue should be taken with a particular offer and therefore significant satellite litigation on this issue is expected.

Pre-medical offers – r36.20(6)

In a "soft tissue injury" claim (i.e. a claim made via the MOJ Portal) any pre-medical Part 36 offer will not have effect until 21 days after the defendant receives the claimant's medical report.

This effectively prevents defendants from being proactive and making pre-medical offers in an effort to compromise claims quickly. In such circumstances, it would be better for defendants to make a Calderbank offer, albeit the costs consequences of Part 36 will be lost.

50% costs – r36.23

Where the offerer is treated as having filed a costs budget limited to court fees, it can still recover 50% of its costs assessed without reference to the limited budget where it beats an offer after the expiry of the relevant period. This provision pushes parties to accept reasonable offers and not simply to continue to run matters to trial. In cases where the costs budget has been so limited, it would be best practice to make an earliest offer possible in order to benefit from this provision.


As can be seen above, the new Part 36 adds additional pressure on parties in a number of ways to avoid protracted litigation.

The principal architect of the new rule, Ed Pepperall QC, Chair of the Civil Procedure Rules Committee's Part 36 Sub-Committee, has produced an annotated guide which provides useful guidance on the rules. The guide can be accessed here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.