Offer without payment-in

Crouch v Kings Healthcare NHS Trust; Murry v Blackburn Hyndburn and Ribble Valley Healthcare NHS Trust CA TLR 9 November

CPR rule 36.3(1) preserves the principle that a defendant to a money claim must make a payment into court if it is to have effective costs consequences, by providing that an offer by a defendant to settle a money claim will not have the presumptive consequences of costs entitlement unless the offer is made by way of a Part 36 payment into court. In the early stages of the Access to Justice consultation, Lord Woolf contemplated that in future defendants might not have to part with their money in order to protect themselves, but he was persuaded that a defendant putting his money where his mouth is is a useful way of assuring claimants of the substance of an offer. The fact that the money was actually available made it more likely that the offer would be accepted. Nevertheless, CPR rule 36.1(2) provides that a party may make an offer to settle in whatever way he chooses, but if the offer is not made in accordance with Part 36, it will only have the specified costs consequences if the court so orders. Further flexibility was incorporated into the rules by the requirement in rule 44.3(4) that the court, when deciding whether to make an order for costs, shall have regard to any offer, whether accompanied by a payment into court or not.