How Part 36 Offers Affect Clinical Negligence Cases

In clinical negligence claims in England and Wales, a Part 36 offer is a powerful legal tool within the Civil Procedure Rules (CPR) that enables parties to make formal settlement offers with defined cost consequences. Part 36 offers can significantly influence case strategy, settlement timing, potential compensation, and the allocation of legal costs. Understanding how Part 36 works, and how it affects clinical negligence litigation, is essential for claimants, defendants, and solicitors involved in disputes over medical care and compensation. This article explains the legal framework, practical operation, effects on costs and risk, and strategic considerations of Part 36 offers in clinical negligence claims.

What Is a Part 36 Offer?

A Part 36 offer is a formal settlement proposal made in writing under Part 36 of the Civil Procedure Rules. It must:

• Clearly state that it is made under Part 36 of the CPR.
• Specify a period of at least 21 days during which the offer can be accepted.
• Indicate whether it relates to the whole of the claim, part of it, or a particular issue (such as liability or quantum).
• Be served in writing on the other party.

Part 36 offers can be made at any stage of a dispute, including before proceedings are issued, during litigation, or even after trial has begun. The purpose is to encourage settlement by creating predictable costs outcomes linked to whether and when the offer is accepted or rejected.

Why Part 36 Is Important in Clinical Negligence

Clinical negligence claims often involve substantial medical evidence, expert reports, and complex valuation of past and future losses. Trials can be lengthy, costly, and uncertain. Part 36 offers provide a mechanism to:

• Encourage early resolution of claims without trial.
• Provide a financial incentive to accept reasonable offers.
• Reduce unnecessary legal costs.
• Establish a clear framework for costs consequences if the offer is rejected and the outcome at trial is less favourable.

Part 36 does not replace normal settlement discussions, but it formalises settlement strategy and markedly influences a party's risk assessment.

How Part 36 Offers Work

Making and Accepting Offers

A Part 36 offer can be made by the claimant (the person bringing a negligence claim) or the defendant (the healthcare provider, NHS trust or insurer). Once made, it remains open for acceptance within the specified period - usually at least 21 days. It may be accepted by written notice to the offeror.

If an offer is accepted, the claim is stayed (paused or concluded) on the terms of the offer, and the party accepting is entitled to receive or pay the agreed sum. Where the offer involves payment of money, that sum must normally be paid within 14 days of acceptance.

Timing and Validity

Part 36 offers must be carefully timed. An offer made too close to trial (less than 21 days before) still can be valid, but it may not produce the same cost benefits for the offeror as an earlier offer.

If an offer is withdrawn or changed before the relevant acceptance period expires, it may cease to have Part 36 consequences. After the relevant period, a party can typically withdraw an unaccepted offer without court permission.

Costs Consequences of Part 36 Offers

A key reason Part 36 is influential is the automatic costs consequences set out in the CPR.

If an Offer Is Accepted Within the Relevant Period

• The claimant is entitled to their legal costs up to the date of acceptance on a standard basis, unless otherwise agreed.
• The defendant pays the amount offered and the claimant's costs up to acceptance.
• This can make settlement financially attractive for claimants who want costs certainty.

If an Offer Is Not Accepted and the Case Goes to Trial

Both claimants and defendants can face consequences depending on the trial outcome:

Where the defendant's Part 36 offer is not beaten at trial:

• If the judgment is the same or less than the amount offered by the defendant, the claimant must usually pay the defendant's legal costs from the end of the relevant period, including interest on those costs. This discourages claimants from rejecting reasonable defendant offers that would have resulted in better financial outcomes at trial.

Where the claimant's Part 36 offer is beaten at trial:

• If the claimant obtains a judgment at least as advantageous as their own offer, the defendant may be ordered to pay the claimant's indemnity costs (a higher level of costs recovery), interest, and an additional percentage uplift on damages (up to a capped amount). This penalises defendants who reject claimant offers that they later fail to beat.

The term “beaten” includes any judgment that is better in money terms, however slightly. Even a nominal increase over the offer can trigger enhanced costs consequences.

Practical Effects on Claimants and Defendants

• Claimants must assess Part 36 offers in the context of cost risks: rejecting a defendant offer that is not beaten at trial may result in the claimant paying the defendant's legal costs from the relevant period onwards, potentially reducing or eliminating net compensation.
• Defendants must balance settlement offers against the risk of enhanced costs and interest if they later lose at trial and the claimant's offer is beaten.
• The rule's design encourages earlier realistic settlement offers and discourages parties from waiting until late in proceedings or trial to propose terms that could have been offered earlier.

Strategic Considerations

Early Offers

Parties often make Part 36 offers before or during pre‑action negotiations or early in litigation. An early well‑judged offer increases pressure on the other side and can reduce cumulative legal costs.

Evaluating Risks

Clinical negligence involves uncertain outcomes. Parties must consider:

• The strength of medical evidence (including expert reports).
• The likely valuation of future losses (e.g., care costs, rehabilitation).
• The costs impact of rejection and potential trial outcomes.

Solicitors routinely model “cost risk scenarios” to advise clients on whether to accept a Part 36 offer or to make an offer themselves. The goal is to balance the certainty of settlement against the risk and cost of trial.

Interaction with Other Settlement Tools

Part 36 offers work alongside informal settlement negotiations and alternative dispute resolution (ADR) such as mediation. ADR can sometimes achieve agreement without invoking Part 36. However, a Part 36 offer can be used within ADR to shape discussions and define costs consequences if settlement fails.

Common Questions

Can a Part 36 offer be accepted after the relevant period?
Yes, but there are different cost consequences if an offer is accepted late, with standard rules or court direction governing costs.

Can a Part 36 offer be conditional?
A valid Part 36 offer must specify terms clearly; attempts to attach additional conditions that are not permitted by CPR Part 36 can make the offer invalid and remove its automatic costs effects.

What happens if a Part 36 offer is not formally disclosed to the trial judge?
In most cases, the fact and terms of a Part 36 offer are not disclosed to the trial judge during the trial phase. The judge only considers offers after the case has been decided and costs are being determined. This preserves impartial determination of the merits of the claim.

Key Takeaways

Part 36 offers are a structured, legally powerful mechanism in clinical negligence litigation in England and Wales. They encourage early resolution, provide predictable cost outcomes, and influence settlement strategy. Their effects on costs and compensation are significant:

• Offers accepted within the relevant period secure costs up to acceptance for claimants.
• Offers not beaten at trial can lead to costs awards against the rejecting party.
• Strategic use of Part 36 helps manage litigation risk and may lead to resolution without a full trial.

Understanding how Part 36 affects clinical negligence claims enhances risk assessment, settlement planning, and cost management for all parties involved.

James William Steven Parker

James is the founder of UKLegalGuides.com and a former agent at the Ministry of Justice (UK). With a background in processing legal claims, he launched this platform to make the laws of England and Wales accessible to everyone.