MOJ Portal Stage 3 and Part 36: What are protocol offers?

MOJ Portal Stage 3 and Part 36: What are protocol offers?

A regular issue that is being raised at MOJ Stage 3 hearings, particularly since the introduction of the 13^th edition of the JC Guidelines: can parties make new offers in their Part B forms and benefit from the cost consequences of Part 36.29 for beating/matching them? This article aims to set out the relevant rules and paragraphs to determine this issue.

Stages 2 and 3

To understand the difficulties and why this issue arises, it is important to understand what steps parties are required to take, and when

Where liability is admitted, parties progress to Stage 2 in which the claimant will serve their medical report upon the Defendant (which, for claims involving soft tissue injuries intimated after 1^st October 2014 has to be a fixed costs report via the MedCo Portal[1]). The Claimant will then complete and serve their “Stage 2 settlement pack”, which is Form RTA 5. This can often be confused with the “Part A” form used in the court proceedings pack at Stage 3, as at first glance they appear very similar, however the two have different roles.

The Stage 2 settlement pack is designed to encourage parties to enter into open negotiation in order to resolve the dispute proportionately. Parties must make at least one offer each. In some cases, multiple offers and counter-offers are made.

If parties cannot agree, the claimant begins the Stage 3 process by serving on the defendant the Court Proceedings Pack and file the same at court. This includes, amongst other documents required by (paragraph 6.1 of 8BPD) Forms RTA6 (“Part A”) and RTA 7 (“Part B”). Part A is similar to parties’ schedules and counter schedules and represents their best cases (and should usually be the starting point of the claims in the Stage 2 Settlement Pack). Part B contains the parties’ final offers and is contained in a sealed envelope to be opened by the judge after giving judgment as to the amount of damages.

Part 36 and Protocol Offers

CPR rule 36.29 sets out the consequences of parties beating or matching their own “Protocol Offers”:

(a) interest on the whole of the damages awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date specified in rule 36.26;

(b) the fixed costs in rule 45.20;

(c) interest on those fixed costs at a rate not exceeding 10% above base rate; and

(d) an additional amount calculated in accordance with rule 36.17(4)(d).

As with all Part 36 offers, the benefits of that section are only rewarded to those who comply with the form and content of offer requirements stipulated in the rules.

According to rule 36.25 a protocol offer must (a) be set out in the Court Proceedings Pack (Part B) Form; and (b) contain the final total amount of the offers from both parties. Guidance in the commentary.

Arguments by claimants

I have encountered a number of arguments by claimants including that they are entitled to make new offers in the Part B form and furthermore this should have Part 36 consequences because 36.26 states that a Protocol offer is deemed made on the first business day after the Court Proceedings Pack is sent to the Defendant. The Defendant is required by 7.67 and 7.68 of the Pre-Action Protocol to check that the Court Proceedings Pack contains accurate details within 5 days of its receipt.

Why the above approach is incorrect

I have successfully argued against the above arguments by Claimants. Whilst the deemed date of the offer is the first business day after the Court Proceedings Pack is sent to the Defendant, the commentary provided at 36.26.1 states that “it would not be wholly accurate to say that a final offer is made at the time with the Form is sent by the claimant to the defendant. Rather it is recorded there after negotiations between the parties have been completed…”

The Part B form should only contain offers which have been communicated (specifically on the Stage 2 Settlement Form) at Stage 2:

• Rule 36.25 quite clearly is a two part test and claimants cannot ignore the second limb of that test which clearly refers to final offers previously made;
• Paragraph 7.64 of the Pre-Action Protocol states that the Court Proceedings Pack (Part A and Part B) Form must contain “in Part B, the final offer and counter offer from the Stage 2 Settlement Pack Form and, where relevant, the offer and any final counter offer made under 7.53 (vehicle related damages);
• The Stage 2 process is designed to enable the parties to engage in open negotiations in order to settle the claim without further costs. This stage would be undermined if parties were able to add new offers at Stage 3, where the greater proportion of the fixed costs are awarded, and benefit from Part 36 consequences.

Parties are able to make revised offers at any point, however, the above must be complied with in order for rule 36.29 to apply.

Who bears the burden of proof?

One further regular issue arises at Stage 3 hearings: who bears the burden of proof regarding what offers have or have not been made? Defendants often put claimants to proof if they have matched or beaten the offer in the Part B form.

There is no guidance on this in Part 36, but in my view “he who asserts must prove”. If a defendant is simply putting to proof rather than denying that any offers have been made, then it must be for a claimant to establish their offer was properly made in order to obtain the benefits.

This should simply be a case of obtaining the Stage 2 Settlement Pack, however currently advocates at the hearings are rarely provided with this. It would certainly be helpful to both claimant and defendant advocates if this was included in their instructions.

Kate Wilson is a member of Park Square Barrister’s personal injury, civil fraud and commercial teams. She is regularly instructed to represent parties in disposal hearings, including Stage 3 hearings.

To book Kate, please contact her clerks Fran or Talia on 01132 459763.

[1] CPR r 45.19(2A)(a)