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Claimant lawyers hit back over “cynical” part 36 offers

Royal Courts of Justice [1]

Defendants leaving claimants to “sweat and often buckle”

The Forum of Complex Injury Lawyers (FOCIS) has hit back after a report for the Civil Procedure Rule Committee (CPRC) recommended that part 36 should be reformed, partly to discourage claimant lawyers from making “cynical” offers.

FOCIS, which represents claimant lawyers acting for seriously injured road traffic or medical negligence victims, has 31 member firms – including Slater & Gordon, Irwin Mitchell, Stewarts Law, Anthony Gold and Leigh Day.

In a letter to the CPRC, Julian Chamberlayne, chairman of FOCIS, said members were concerned to see the reference to “cynical claimant offers” in the report by Ed Pepperall QC.

FOCIS said in its own review of part 36 that its importance had grown following the Jackson reforms, and should be seen as part of his “coherent package of interlocking reforms”.

It said that while some amendments to part 36 might be appropriate, to clarify the operation of the rule “in some very specific circumstances” and help ensure “parity between claimant and defendant”, wider amendments could risk undermining the Jackson reforms and creating greater disparity.

“There is also a risk that the high degree of certainty on how the rule operates, itself an important way of avoiding disproportionate costs, would be lost.”

FOCIS said that, as noted by Lord Justice Jackson, part 36 had been “a success” and “other than addressing the underlying need for the rule to operate with parity between claimant and defendant, any proposed amendments should be viewed with considerable caution”.

The forum said that while defendants got the benefit of part 36 offers as soon as 21 days had expired, claimants rarely did, because the benefits would usually only apply if they obtained judgment.

“As it stands, deep-pocket defendants, well versed in litigation tactics, can and regularly do allow the part 36 offers of one-off claimants to expire, leaving the claimant to sweat and often buckle, accepting a below-value counter-proposal simply to see an end to the case.”

FOCIS said this was the main reason why claimants made many fewer part 36 offers than defendants. “Unless and until this disparity is addressed that trend is likely to continue with the result that cases that might have settled earlier continue to rumble on into their latter stages, with increased costs for both sides.”

FOCIS called for part 36 to be amended to provide for the claimants to have the benefits set out in part 36.14(3) where the offer was accepted outside the relevant period, unless it would be unjust.

It called for a further rule change to address the anomaly that while the additional 10% of damages that could be claimed by claimants under the Jackson reforms was capped at £75,000, defendants’ costs could exceed that amount “by a considerable margin”.

The forum disagreed with Mr Pepperall that part 36 was too technical and offers were failing on technical grounds. “There is no unnecessary technicality which makes compliance with the terms of Part 36 difficult,” FOCIS said. “The rules are clear.

“There is a practice form the parties can, and probably should, use. Moreover, if a party cannot, or choses not, to use part 36, there is still a general discretion on costs under part 44.”