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We have recommended retention of the present rule that a defendant faced with a
money claim must make a payment into court if he is to qualify for relevant costs
protection. Such payments cannot be made before commencement of proceedings
since, before commencement, the court would not have taken cognisance of the parties
or their dispute. While a defendant may nevertheless offer to pay a particular sum to
the other party before commencement, this will not qualify as a sanctioned offer.
Thus, CPR 36.10(3) should not be adopted, as there would be no need for a rule
requiring any post-commencement payment into court to match or exceed any sum
offered before commencement.
Recommendation 40: While parties should be encouraged to settle their
disputes by negotiation, offers made before commencement of the proceedings
should not qualify as sanctioned offers 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.
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