 |  |
|
 |
 |
 |
 |
|  | |  | |
(c)
Sufficiency of information
Another consequence of not adopting pre-action protocols generally is that parties are
likely to have less information about each other's case at the early stages of the
proceedings. This could limit the effectiveness of sanctioned offers unless proper
steps are taken by the parties.
The rules will necessarily reserve to the court a discretion as to whether and how far
the adverse consequences of rejecting a sanctioned offer ought to be visited on any
particular litigant. Thus, CPR 36.20(2) and CPR 36.21(4) provide for the adverse
orders to be made "unless [the court] considers it unjust to do so". It would obviously
be unjust to inflict such consequences on a party if the other side's case has not been
conveyed to him sufficiently clearly to enable him fairly to evaluate it and to decide
whether to accept the offer. Thus, in Ford v GKR Construction Ltd (Practice Note)
[2000] 1 WLR 1397 at 1403, Lord Woolf stated :-
"If the process of making Part 36 offers before the commencement of litigation is to work in
the way which the C.P.R. intend, the parties must be provided with the information which
they require in order to assess whether to make an offer or whether to accept that offer. ......
the rules refer to the power of the court to make other orders and make it clear that the normal
consequence does not apply when it is unjust that it should do so. If a party has not enabled
another party to properly assess whether or not to make an offer, or whether or not to accept
an offer which is made, because of non-disclosure to the other party of material matters, or if
a party comes to a decision which is different from that which would have been reached if
there had been proper disclosure, that is a material matter for a court to take into account in
considering what orders it should make. This is of particular significance so far as defendants
are concerned because of the power of the court to order additional interest in situations
where an offer by a claimant is not accepted by a defendant."
Thus, sufficiency of information is listed in CPR 36.21(5) among the factors relevant
to the court's discretion as follows :-
"In considering whether it would be unjust to make the orders referred to in (2) and (3) above,
the court will take into account all the circumstances of the case including—
(a)
the terms of any Part 36 offer;
(b)
the stage in the proceedings when any Part 36 offer or Part 36 payment was
made;
(c)
the information available to the parties at the time when the Part 36 offer or
Part 36 payment was made; and
(d)
the conduct of the parties with regard to the giving or refusing to give
information for the purposes of enabling the offer or payment into court to be
made or evaluated."
|
 |
|