 |  |
|
 |
 |
 |
 |
|  | |  | |
(b)
When sanctioned offers can be made
In England and Wales, Part 36 offers
are intended to be made even before
commencement of proceedings, as part of the scheme of pre-action protocols and
judicial scrutiny of the parties' pre-commencement conduct. Thus, CPR 36.10(1)
provides :-
"If a person makes an offer to settle before proceedings are begun which complies with the
provisions of this rule, the court will take that offer into account when making any order as to
costs."
In the light of the resistance shown in the consultation against the general adoption of
pre-action protocols and against the court assuming powers to penalise the parties'
pre-commencement conduct, primarily on the ground that such rules would result in
unnecessary front-loaded costs (as previously discussed
), the Working Party
recommends that only sanctioned offers and payments made at the time of or after
service of the Writ should be taken into account for the purposes of the sanctioned
consequences, save to the extent that a pre-action protocol which has been adopted in
relation to particular specialist list proceedings provides otherwise in respect of such
specialist list proceedings. Accordingly, CPR 36.10(1) should not be adopted.
In consequence, although parties would be encouraged to settle their disputes before
starting proceedings, their rejection of any pre-commencement offers which would
otherwise qualify as sanctioned offers would not subsequently be taken into account
by the court (subject to the aforementioned exception concerning pre-action protocols
in a specialist list). The court would only attach any adverse consequences to the non-
acceptance of sanctioned offers made with or after service of the Writ (such
consequences to take effect from the end of the period allowed for acceptance).
Notes
As opposed to Part 36 payments: CPR 36.3(2).
See Section 5 above.
As discussed in the following section of this Final Report, other aspects of CPR 36.10 are also
recommended for adaptation in the Hong Kong context.
|
 |
|