Scope of this part Rule 36.1

Introductory - offers to settle Rule 36.2

Making an offer to settle 'without prejudice as to costs' Rule 36.3

Time when an offer to settle may be made Rule 36.4

Procedure for making an offer to settle Rule 36.5

Extent to which offer to settle covers interest or counterclaim Rule 36.6

Offer to settle after interim payment Rule 36.7

Offer to settle part of claim Rule 36.8

Time limit for accepting an offer to settle Rule 36.9

Procedure for acceptance Rule 36.10

Effect of acceptance - generally Rule 36.11

Effect of acceptance - more than two parties Rule 36.12

Costs of offeror and offeree where offer is accepted

- defendant's offer Rule 36.13

Costs of offeror and offeree where offer is accepted

- claimant's offer Rule 36.14

Withdrawal of offer Rule 36.15

Variation of offer Rule 36.16

Costs where offer not accepted - general rules Rule 36.17

Appropriate higher rate of interest on damages Rule 36.18

Higher rate of interest on costs Rule 36.19

Cases where the claimant succeeds on his whole claim Rule 36.20

36.1 (1) This Part contains rules about

1. offers to settle which any party may make to another party; and
2. the consequences of such offers.

1. This Part does not limit a party's right to make an offer to settle otherwise than in accordance with this Part.

36.2 (1) An offer to settle may be made in any proceedings

1. The party who makes the offer is called the "offeror".
2. The party to whom the offer is made is called the "offeree"
3. An offer to settle is made when it is served on the offeree

1. The offer may relate to the whole of the proceedings or to part of them or to any issue that arises in them.

36.4 A party may make an offer to settle under this Part at any

36.5 (1) An offer to settle must be in writing.

1. The offeror must serve the offer on the offeree and a copy on all other parties.
2. The offer must not be communicated to the court before judgment is given.
3. Paragraph (1) does not apply

1. to an offer which has been accepted; or
2. where a defence of tender before claim has been pleaded; or
3. where an issue concerning the amount of debt or damages is tried separately from the issue of liability for such debt or damages.

36.6 (1) An offer to settle a claim for damages must state whether or

1. interest; or
2. costs.

1. If the offer covers interest or costs it must state the amount which is included for each.
2. If there is a counterclaim as well as a claim, the offer must state -

1. in the case of an offer by the claimant, whether or not it takes into account the counterclaim; or
2. in the case of an offer by the defendant. whether or not it takes into account the claim,

36.7 If an interim payment has been made, whether voluntarily or

36.8 (1) An offer to settle must state whether or not it covers

1. If it does not it is to be taken to cover the whole claim.
2. If the offer covers only part or parts of the claim it must -

36.9 (1) The offeror may state in the offer that it is open for

1. The offer shall have no effect on any decision that the court may have to make as to the consequences of the offer unless it is open for acceptance for at least 21 days.
2. Acceptance of the offer shall have no effect on any decision that the court may have to make as to the consequences of acceptance of the offer if it is accepted after the beginning of the trial.

36.10 To accept an offer a party must -

1. serve written notice of acceptance on the offeror; and
2. serve a copy of the notice on any other party.

1. If the offer covers a claim and a counterclaim, both the claim and the counterclaim are stayed on the terms of the offer.
2. In any other case the proceedings are stayed to the extent that they are covered by the terms of the offer.
3. If the court's approval is required for the settlement of the proceedings, any stay arising on the acceptance of the offer has effect only when the court gives its approval.

(Part 23 deals with the settlement of proceedings involving minors and patients.)

4. A stay arising on the acceptance of an offer does not affect proceedings to deal with any question of costs relating to the proceedings which have been stayed.
5. Where money has been paid into court in support of an offer, a stay arising out of the acceptance of the offer does not affect any proceedings to obtain payment out of court.

(Part 37 deals with payments into court.)

6. Where an offer is accepted but its terms are not complied with, any stay arising on acceptance ceases to have effect and the proceedings or the part which was stayed may continue.

36.12 (1) Where

1. there is more than one defendant whom the claimant says are jointly and severally, or severally, liable; and
2. the claimant agrees to settle the claim as against one or more, but not all of them; and
3. the claimant discontinues his claim against any other defendant

1. Where a claimant accepts an offer made by one of a number of joint defendants -

1. paragraph (1) shall not apply; and
2. the defendant who made the offer is liable for the costs of the other joint defendants unless the terms of his offer limit his liability for costs.

1. If the terms of an offer made by one of a number of joint defendants limit the offeror's liability for costs, the court may decide who bears the costs.
2. Where -

1. there is more than one claimant; and
2. one or more, but not all, of them agree to settle,

36.13 (1) Where -

1. Where the defendant does not state the period within which the offer is open for acceptance -

1. if the claimant accepts it within 21 days of the date when it is made, he is entitled to his costs up to the date on which he accepts it; or
2. if he accepts the payment more than 21 days after the date on which it is made, he is entitled to his costs up to the date on which he accepts it unless the court orders otherwise.

1. The time when an offeree accepts the offer is the time when he sends notice of acceptance to the offeror.
2. Paragraphs (1) and (2) do not entitle the claimant to costs in relation to any part of the proceedings that is to continue after acceptance.
3. If the defendant permits a claimant to accept an offer after the time originally stated for accepting it -

1. the claimant is entitled to his costs to the end of the period originally stated for accepting the offer; and
2. the defendant is entitled to any costs that he many have incurred between the end of the period originally stated for accepting the offer and the date when the offeree accepts the offer, unless the court orders otherwise.

36.14 Where the claimant makes an offer which is accepted by the

36.15 (1) The general rule for defendant's offers is that, where

1. in the case of an offer to settle the claim for damages, the court awards less than 85% of the amount of the defendant's offer; or
2. in any other case, the court considers that the claimant acted unreasonably in not accepting the defendant's offer

the claimant must pay any costs incurred by the defendant

1. The general rule for claimant's offers is that, where a claimant makes an offer to settle and -

1. in the case of an offer to settle a claim for damages, the court awards an amount which is equal to or more than the amount of the offer; or
2. in any other case, the court considers that the defendant acted unreasonably in not accepting the claimant's offer,

1. The court may decide that the general rule under paragraph (1) and (2), as the case may be, is not to apply in a particular case.
2. In deciding whether the general rule should not apply, the court may take into account -

1. the terms of any offer; and
2. the stage in the proceedings at which the offer was made; and
3. the information available to the offeror and the offeree at the time that the offeror made the offer; and
4. the conduct of the offeror and the offeree with regard to giving or refusing information for the purposes of enabling the offer to be made or evaluated.

1. This rule applies to offers to settle at any time, including before proceedings were started.

1. For the next $100,000 of net damages, interest shall be paid at 15% re annum
2. For the next $l50,000 of net damages, interest shall be shall be paid at 12% per annum
3. For the next $500,000 of net damages, interest shall be paid at 10% per annum
4. For an net damages in excess of $800,000, interest shall be paid at 8% per annum.
5. Interest on damages under rule 36.15(2) at the appropriate higher rate begins to run 21 days after the offer was made unless the court orders otherwise.
6. In this rule 'net' means the amount of damages on the claim less the amount (if any) awarded on any counterclaim.

plus 10% interest on the remaining $100,000 for one year ($10,000),

a total of $53,000 interest on damages.

36.17 A claimant who

1. claims a specified sum of money; and
2. is awarded the whole of that amount at trial