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Part 36 offers - Carver v BAA does not apply to offers made after 1st October 2011

An important change is being made to the Civil Procedural Rules which is going to require you to review all of your existing Part 36 offers.

The CPR (Amendment No.2) Rules 2011, which come into effect on 1 October 2011, will overrule the decision of Carver v BAA plc [2008], which ruled that because the Claimant had only just beaten a Part 36 offer, he had failed to obtain a judgment which was "more advantageous” within the meaning of CPR 36.14, and the Defendant was awarded its costs from the date the offer expired.

The rule change inserts a new paragraph 36.14(1A) into Part 36 of the CPR, which states:

 'For the purposes of paragraph (1), in relation to any money claim or money element of a claim, "more advantageous” means better in money terms by any amount, however small, and "at least as advantageous” shall be construed accordingly'

Section 1 (4) of these (Amendment No.2) Rules clearly states: "Rule (4) applies to offers to settle made in accordance with Rule 36.2 on or after 1st October 2011” so this will apply to Part 36 offers made on or after 1st October 2011, irrespective of when proceedings were commenced, or when trial takes place, but it will not apply to offers you have previously made. This being so, Carver will apply to any previous offers and it may therefore be extremely wise to repeat any Part 36 offers you have previously made in order to avoid a possible award of adverse costs based on Carver, provided such an offer still makes sense in the context of the particular claim.

So there you have it. A sensible rule change for a er, change.

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