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18 October 2013

Abridgement of time for Part 36 offers

Abridgement of time for Part 36 offers
18 October 2013

Abridgement of time for Part 36 offers

Abridgement of time for Part 36 offers

Which PI lawyer worth the name can be unaware of the main CPR changes post 1st April 2013?

Those changes which have caused most trepidation concern the overriding objective and the relief from sanctions provisions, enshrining the needs for proportionate cost and compliance with rules, practice directions and orders. Postponement of a trial remains an order of last resort (para 7.4 (6) of PD 29), and litigants and lawyers who miss deadlines close to trial risk being caught in a procedural vice. Hence the close reading by practitioners of the runes of post-April decisions such as Venulum Property Investments v Space Architecture [2013] EWHC 1242 (TCC) for signs of a tougher judicial approach to procedural error and delay.

There are still some escape routes, however. Rule 36.14(6) expressly contemplates abridgement by the court of the 21 day period for acceptance of a Part 36 offer, and on a number of occasions I have recommended to claimants offering or agreeing such an abridgement as the necessary price to be paid for late admission of evidence.

That approach has explicit judicial sanction.

In Matharoo v Medway NHS Foundation Trust [2013] EWHC 818 (QB), liability was admitted and the Master ordered a tight timetable of quantum directions, with sequential exchange of surgical and psychiatric reports prior to trial in February 2013. In November 2012, the defendant began to make arrangements for the claimant to be examined in December.  The claimant was unable to attend on the dates suggested, but arranged to and did attend in January 2013. The defendant argued that the claimant had behaved unreasonably in not making herself available for examination in December, and that it had insufficient time to prepare for trial or make a Part 36 offer. Swift J held that the claimant had not acted unreasonably, and that it was in the interests of justice that the trial date be maintained. But in order to avert unfairness to the defendant she directed that time for any defendants Part 36 offer be abridged to 7 days prior to trial.

As this case shows, abridgement of time under Part 36 can neatly draw the sting of the opposing partys prejudice arguments. It is a device with even greater application in the new era. Although the abridgement formally requires the courts order, it is very likely that an agreement by the parties would have the same or a closely similar effect in costs terms.

Author: Joel Donovan QC


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