Part 35 – Offers to Settle

Scope of this Part

35.1

1. This Part contains Rules about –
   1. offers to settle which a party may make to another party; and
   2. the consequences of such offers.
2. This Part does not limit a party’s right to make an offer to settle otherwise than in accordance with this Part.
3. The Rules in this Part are subject to rule 23.12 (compromise, etc. on behalf of a minor or patient).
   • Part 36 deals with payments into court.

Introductory

35.2

1. An offer to settle may be made in any proceedings whether or not there is a claim for money.
2. The party who makes the offer is called the “offeror”.
3. The party to whom the offer is made is called the “offeree”.
4. An offer to settle is made when it is served on the offeree.

Making offer to settle

35.3

1. A party may make an offer to another party which is expressed to be “without prejudice” and in which the offeror reserves the right to make the terms of the offer known to the court after judgment is given with regard to –
   1. the allocation of the costs of the proceedings; and
   2. (in the case of an offer by the claimant) the question of interest on damages.
2. The offer may relate to the whole of the proceedings or to part of them or to any issue that arises in them.

Time when offer to settle may be made

35.4

1. A party may make an offer to settle under this Part at any time before the beginning of the trial.

Procedure for making offer to settle

35.5

1. An offer to settle must be in writing.
2. The offeror must serve the offer on the offeree and a copy on all other parties.
3. Neither the fact nor the amount of the offer or any payment into court in support of the offer must be communicated to the court before all questions of liability and the amount of money to be awarded (other than costs and interest) have been decided.
4. Paragraph (3) does not apply to an offer which has been accepted or where a defence of tender before claim has been pleaded.

Extent to which offer to settle covers interest, costs or counterclaim

35.6

1. An offer to settle a claim for damages must state whether or not the amount offered includes interest or costs.
2. If the offer covers interest or costs it must state the amount which is included for each.
3. If there is a counterclaim as well as a claim, the offer must state in the case of an offer by the –
   1. claimant – whether or not it takes into account the counterclaim; or
   2. defendant – whether or not it takes into account the claim; and in each case in what amount.

Offer to settle made after interim payment

35.7

1. If an interim payment has been made, whether voluntarily or under an order under Part 17, any subsequent offer to settle must state whether it is in addition to the interim payment or whether it is intended to replace it.

Offer to settle part of claim

35.8

1. An offer to settle must state whether or not it covers the whole or part of the claim.
2. If it does not state that it covers part of the claim, it is to be taken to cover the whole claim.
3. If the offer covers only part or parts of the claim it must –
   1. identify the part or parts of the claim in respect of which it is made; and
   2. if more than one, state what is offered in respect of each part covered by the offer.

Time limit for accepting offer to settle

35.9

1. The offeror may state in the offer that it is open for acceptance until a specified date.
2. The offer shall have no effect on any decision that the court makes as to the consequences of the offer unless it is open for acceptance for at least 21 days.
3. Acceptance of the offer after the beginning of the trial shall have no effect on any decision that the court makes as to the consequences of such acceptance.
4. The court may permit an offeree to accept an offer after the specified date on such terms as the   court considers just.

Procedure for acceptance

35.10

1. To accept an offer a party must –
   1. serve written notice of acceptance on the offeror; and
   2. send a copy of the notice to any other party.
2. The offeree accepts the offer when notice of acceptance is served on the offeror.
3. If an offer or payment into court under Part 36 is made in proceedings to which rule 23.12 applies –
   1. the offer or payment may be accepted only with the permission of the court; and
   2. no payment out of any sum paid into court may be made without a court order.
      • Rule 23.12 deals with compromises, etc. by or on behalf of a minor or patient.

Effect of acceptance – generally

35.11

1. If the offeree accepts an offer which is not limited in accordance with rule 35.8, the claim is stayed upon the terms of the offer.
2. If the offer covers a claim and a counterclaim, both the claim and the counterclaim are stayed on the terms of the offer.
3. In any other case, the proceedings are stayed to the extent that they are covered by the terms of the offer.
4. If the court’s approval is required for the settlement of the proceedings, any stay arising on the acceptance of the offer has effect only when the court gives its approval.
   • Rule 23.12 deals with the settlement of proceedings involving minors and patients.
5. A stay arising on the acceptance of an offer does not affect proceedings to deal with any question of costs relating to the proceedings which have been stayed and which have not been dealt with by the offer.
6. If money has been paid into court in support of an offer, a stay arising out of the acceptance of the offer does not affect any proceedings to obtain payment out of court.
   • Part 36 deals with payments into court.
7. If an offer is accepted and its terms are not complied with, any stay arising on acceptance ceases to have effect and –
   1. the proceedings or the part which was stayed may continue; and
   2. either party may apply to the court to enforce those terms.
8. If a party claims damages for breach of contract arising from an alleged failure of another party to carry out the terms of an agreed offer, that party may do so by applying to the court without the need to commence new proceedings unless the court orders otherwise.

Effect of acceptance – more than two parties

35.12

1. If there is more than one defendant whom the claimant claims are jointly and severally, or severally, liable and the claimant –
   1. agrees to settle the claim as against one or more, but not all of them; and
   2. discontinues the claim against any other defendant; the claimant is liable to pay the costs of that defendant unless the court otherwise orders.
      • Part 37 deals with discontinuance.
2. If a claimant accepts an offer made by one of a number of joint defendants –
   1. paragraph (1) does not apply; and
   2. the defendant who made the offer is liable for the costs of the other joint defendants.
3. If–
   1. there is more than one claimant and
   2. one or more, but not all, of them agree to settle; the other claimants may continue the proceedings.

Costs of offeror and offeree where offer is accepted – defendant’s offer

35.13

1. If the –
   1. defendant makes an offer to settle; and
   2. claimant accepts the offer within any period stated for accepting it and before the beginning of the trial; the claimant is entitled to the costs of the proceedings up to the date of acceptance of the offer.
2. If the defendant permits a claimant to accept an offer after the time stated for accepting it, the general rule is that the –
   1. claimant is entitled to costs to the end of the period stated for accepting the offer; and
   2. defendant is entitled to any costs incurred between the end of the period stated for accepting the offer and the date when the offeree accepts the offer; unless the court orders otherwise.
3. If the settlement relates only to part of the proceedings and the remaining part or parts of the proceedings continue –
   1. the claimant is entitled under this rule only to the costs relating to that part of the proceedings which has been settled; and
   2. unless the court orders otherwise or the defendant agrees, the claimant may not recover any such costs, nor have them quanti­fied, until the conclusion of the rest of the proceedings, when the court can deal with the costs of the whole of the proceedings including any costs relating to those parts of the proceedings that were not settled.

Costs of offeror and offeree where offer is accepted  – claimant’s offer

35.14

1. If the claimant makes an offer which is accepted by the defendant, the claimant is entitled to costs up to the time when notice of acceptance of the offer is served.

Costs where offer not accepted – general rules 

35.15

1. The general rule for defendants’ offers is that, if the defendant makes an offer to settle which is not accepted and in –
   1. the case of an offer to settle a claim for damages – the court awards less than 85% of the amount of the defendant’s offer;
   2. any other case – the court considers that the claimant acted  unreasonably in not accepting the defendant’s offer; the claimant must pay any costs incurred by the defendant after the latest date on which the offer could have been accepted without the court’s permission.
2. If a claimant makes an offer to settle and in –
   1. the case of an offer to settle a claim for damages – the court awards an amount which is equal to or more than the amount of the offer;
   2. any other case – the court considers that the defendant acted unreasonably in not accepting the claimant’s offer; the court may, in exercising its discretion as to interest take into account the rates set out in the following table
      • Net amount of damages  Rate of interest
      • not exceeding EC$ 100,000                           15% per annum
      • for the next EC$l50,000                                 12% per annum
      • for the next EC$500,000                                10% per annum
      • in excess of EC$ 800,000                              8% per annum
      • where ‘net’ means the amount of damages on the claim less the amount (if any) awarded on any counterclaim.
      • (Example
      • One year since the offer. Damages – EC$400,000;
      • The court might award –
      • 15% on the first $100,000 for one year ($15,000);
      • plus 12% interest on the next $150,000 for one year ($18,000);
      • plus 10% interest on the remaining $150,000 for one year ($15,000);
      • a total of EC$48,000 interest on damages.)
   3. The court may decide that the general rule under paragraph (1) is not to apply in a particular case.
   4. In deciding whether the general rule should not apply and in consid­ering the exercise of its discretion under paragraph (2), the court may take into account the –
      1. conduct of the offeror and the offeree with regard to giving or refusing information for the purposes of enabling the offer to be made or evaluated;
      2. information available to the offeror and the offeree at the time that the offer was made;
      3. stage in the proceedings at which the offer was made; and
      4. terms of any offer.
   5. This rule applies to offers to settle at any time, including before proceedings were started.

How costs are to be dealt with

35.16

1. If an offer to settle is accepted, the parties may agree the amount of costs that are due to be paid under this Part.
2. If the amount of costs falls to be quantified by the court, then the general rule is that, unless an order has been made for budgeted costs under rule 65.8, the costs are to be determined in accordance with the scale of prescribed costs contained in Part 65, Appendices B and C.
3. If an offer to settle –
   1. is accepted after the time originally stated for accepting it under rule 35.10 (2); or
   2. deals only with part of the case in accordance with rule 35.13 (3); the amount of costs to be paid to the party entitled to such costs must be assessed by the court and in assessing the costs the court must take into account the scale of prescribed costs or the amount of the budgeted costs as the case may be.
   3. In determining the appropriate amount of costs to be paid where an order has been made under rule 65.8 (budgeted costs), the court may take into account any written information provided by either party when the costs budget was made.