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11.2
Relevant Hong Kong considerations
(a)
Offers and payments made by the defendant
As indicated above, the innovations made by Part 36 in relation to defendants are
relatively minor when compared with the regime existing under O 22. Thus, where a
plaintiff brings a money claim, the defendant still has to make a payment into court if
he wants to trigger potential Part 36 consequences.
And he can only make such a
payment after proceedings have started.
The main change in relation to defendants is in relation to claims other than money
claims (and to the non-money component of mixed claims). Defendants can now
make Part 36 offers in respect of such claims with the same costs consequences as
which lies at the heart of the scheme for defendants provides as follows :-
"(1)
This rule applies where at trial a claimant—
(a)
fails to better a Part 36 payment; or
(b)
fails to obtain a judgment which is more advantageous than a defendant's Part
36 offer.
(2)
Unless it considers it unjust to do so, the court will order the claimant to pay any costs
incurred by the defendant after the latest date on which the payment or offer could
have been accepted without needing the permission of the court.
Thus, as with a payment into court, a Part 36 offer prima facie entitles the defendant to
an order for the plaintiff to pay all the post-offer costs even after winning the case,
where the plaintiff has failed to better the defendant's offer at the trial. This rule is
only disapplied where the court "considers it unjust" to make the order. The Hong
Kong position is presently governed by O 22 r 14, a rule codifying the development of
Calderbank offers
, in combination with O 62 r 5(d). They allow the court to "take
into account" such offers of settlement in exercising its discretion as to costs, but
without giving the defendant any defined prima facie entitlement.
Notes
CPR 36.3(1), as under O 22 r 1. Under the CPR, a defendant may make a pre-commencement offer
but then, when the proceedings are started, must back it up by paying a sum not less than the sum
previously offered into court: CPR 36.10(3).
CPR 36.3(2). Presently, a payment into court may be made after service of the writ: HKCP 2002,
22/1/8.
After Calderbank v Calderbank [1976] Fam 93. See HKCP 2002, 22/14/1.
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