This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive guide on how settlement offers are evaluated in clinical negligence claims in England and Wales. Explains Part 36 offers under the Civil Procedure Rules, costs consequences, comparing offers with trial outcomes, genuine attempts to settle, Calderbank offers, and practical guidance for claimants and solicitors.
In clinical negligence claims in England and Wales, settlement offers are a key part of resolving disputes without trial. These offers - which propose a financial sum or other terms to end a claim - play an important role in negotiations and can have significant legal and financial consequences if a case proceeds to court. Understanding how settlement offers are evaluated, and especially how the Civil Procedure Rules (CPR) govern formal offers such as Part 36 offers, is essential for claimants, defendants and solicitors alike. This article explains the legal framework for settlement offers, how courts assess them, and the practical considerations that influence decisions about whether to accept, reject or negotiate an offer in a medical negligence case.
What Is a Settlement Offer in Clinical Negligence?
A settlement offer is a proposal by one party to resolve all or part of a legal claim without proceeding to trial. In clinical negligence, settlement offers usually consist of a financial sum intended to compensate the claimant for injuries, loss and future needs. Offers can be made at any time during negotiations before proceedings, after court proceedings have started, or even after judgment, depending on circumstances.
There are different forms of settlement offers recognised in English civil procedure:
- Part 36 offers - formal offers to settle under Part 36 of the Civil Procedure Rules (CPR). These are structured with specified time periods and carry defined costs consequences if not beaten at trial.
- Calderbank offers - settlement proposals made “without prejudice, save as to costs”. These are governed by common law and can influence costs orders, but do not have the same statutory regime and automatic consequences as Part 36 offers.
Each type of offer is evaluated differently by solicitors and, if a case goes to court, by judges.
The Legal Framework: CPR Part 36 and Costs Consequences
Settlement offers under Part 36 of the Civil Procedure Rules are designed to encourage parties to settle and to provide a structure for comparing offers with final judgments. Part 36 contains a self‑contained procedural code that governs how offers must be made, the minimum period for acceptance (usually 21 days) and the costs consequences of rejecting an offer and failing to “beat” it at trial.
Key Features of Part 36 Offers
A valid Part 36 offer must:
- Be in writing and clearly state that it is made under Part 36.
- Specify whether the offer relates to the whole claim, part of it, or an issue within it.
- State a minimum period within which the offeree may accept.
- Clarify how the offer treats costs and, where relevant, counterclaims.
Once made, a Part 36 offer remains open for acceptance for the stated period and can, with some exceptions, be accepted even after expiry if not expressly withdrawn (subject to court permission in certain circumstances).
Costs Consequences Under CPR Part 36
The court evaluates settlement offers after the substantive issues in a case have been decided, but before costs are assessed. The key question is whether the outcome at trial is:
- More advantageous than the offer (for a claimant's offer), or
- At least as advantageous as the offer (for a defendant's offer).
If a claimant fails to obtain an award higher than a defendant's Part 36 offer, or a defendant fails to beat a claimant's Part 36 offer, the court must impose costs consequences in favour of the offeror unless it would be unjust to do so.
Costs consequences can include:
- Liability for the other party's costs from the end of the relevant period.
- Interest on costs and damages at rates set out in the CPR.
- Additional sums (in claimant offers) up to statutory limits.
These rules are intended to incentivise sensible settlement and discourage refusal of reasonable offers that are likely to be superior to the eventual court outcome.
How Courts Evaluate Settlement Offers in Practice
Comparing Offers With Outcomes
When a Part 36 offer has not been accepted and the case proceeds to trial, the judge will compare the offer's terms with the outcome, but only after the substantive judgment has been decided (for example, liability and quantum). The judge will not ordinarily know about Part 36 offers during the trial itself.
For claimant offers, the court asks whether the judgment was at least as advantageous as the offer terms; for defendant offers, the court examines whether the claimant failed to obtain a more advantageous award than the offer. Even a marginal difference in monetary terms - often by a small amount - may be sufficient to “beat” an offer.
Not all offers carry Part 36 consequences. Offers made outside of the Part 36 regime, such as Calderbank offers, do not automatically trigger statutory cost consequences. However, courts retain discretion under CPR Part 44 to consider any reasonable offer when deciding costs. Calderbank offers in particular can be important when settlements are attempted in unconventional terms or outside strict Part 36 requirements.
Genuine Attempt to Settle
Courts will evaluate whether an offer was a genuine attempt to settle the proceedings as a whole. An offer that essentially demands full victory (for example, 100% of a party's claimed amount without concession) may be treated as not a genuine settlement attempt, reducing its value for costs purposes.
In some cases, a Part 36 offer may cover only part of a claim (for example, liability only), and the court will consider whether the offer genuinely engages with the issues in dispute.
Timing and Information Available
The timing of an offer and what each party knows (such as prognosis uncertainty or ongoing expert evidence gathering) are relevant when the court decides whether it would be unjust to apply strict costs consequences. For example, if a claimant waits to accept an offer until significant medical evidence is acquired, the court may consider whether it was reasonable for the claimant to delay acceptance.
Practical Considerations for Claimants and Defendants
Valuation and Negotiation
Settlement offers should be based on a realistic valuation of the claim. Lawyers usually assess claim value by reviewing medical reports, expert evidence and future care needs before advising on Part 36 offers or negotiations. A well‑timed and thoughtfully calculated offer can bring about an early resolution and avoid significant litigation costs.
Risks of Rejecting Offers
Rejecting a reasonable settlement offer without clear justification can expose a party to adverse costs consequences if the trial outcome does not match or exceed the offer. Cost penalties can erode any damages awarded.
Role of Solicitors
Because settlement offers involve legal and strategic complexity - particularly concerning timing, costs risks and statutory requirements - parties are generally advised to work with solicitors experienced in clinical negligence and Part 36 negotiations.
Summary
Settlement offers in clinical negligence claims in England and Wales are evaluated under structured legal rules that aim to promote early and fair resolution of disputes. Formal offers under CPR Part 36 have defined procedural requirements and significant costs consequences if not accepted and not beaten at trial. Courts assess whether the outcome obtained at trial is more or at least as advantageous as the offer, and apply costs consequences accordingly unless doing so would be unjust. Other settlement offers, such as Calderbank offers, may not carry statutory costs consequences but can still influence judicial discretion under cost rules. Careful valuation, strategic negotiation and expert legal advice are critical to evaluating and responding to settlement offers in medical negligence cases.
