CPR Part 36 Amendment

By Jonathan Boyle
Jonathan Boyle

With effect from 1st October 2011, an important amendment has been made to CPR Part 36.

Rule 4 of the Civil Procedure (Amendment No. 2) Rules 2011 inserts after r.36.14(1) a new paragraph:

“(1A)   For the purposes of paragraph (1), in relation to any money claim or money element of a claim, “more advantageous” means better in money terms by any amount, however small, and “at least as advantageous” shall be construed accordingly.”

This amendment has been introduced to remove the uncertainty created by carver_v_ba_2008_ewca_civ_412.pdf.  In Carver, the Claimant exceeded the Defendant’s Part 36 Offer by only £51.  The Court of Appeal held that, the Judgment obtained by the Claimant was not “more advantageous” than the Defendant’s offer within the meaning of r.36.14(1)(a).

It should be noted that Carver was a less than straight forward case. The Court found the Claimant’s conduct to be less than exemplary. Accordingly, on the particular facts, it had not been “worth the fight” to pursue the matter for the sake of £51.

However, for practitioners obvious uncertainty was created when advising clients as to what sum of money was “worth the fight”.

Importantly, it should be noted that r.36.14(1A) applies to offers to settle made in accordance with r.36.2 on or after 1st October 2011.Thus, Carver arguments may still arise in respect of offers made prior to that date.

(A copy of Carver can be downloaded here: carver_v_ba_2008_ewca_civ_412.pdf)

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