The Consequences of Part 36 Offers in Civil Litigation

Anthony Philpott, Barrister, 12 Old Square Chambers, Lincoln’s Inn, London, UK

A major tactic to be employed by either party in settlement of civil litigation is the use of what is known as the Part 36 offer. This is a means of putting pressure on the opponent in litigation by pitching a financial offer at the right level so that they have to make a decision on whether to accept the offer or to risk costs penalties being imposed if the court awards more or equal to the amount offered. This article considers the following: • The background to Part 36 offers • The financial consequences of beating or failing to beat Part 36 offers • Consequences of non-acceptance of a Part 36 offer • Validity, form and content of a Part 36 offer • Withdrawal or variation of Part offers made on or after 6 April 2015 • Time limited part 36 offers • Accepting Part 36 offers

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United Kingdom Litigation Construction June 2017 Vol.10, No. 39, Spring 2017

Anthony Philpott

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Anthony Philpott is a Construction Lawyer and is practising as a Barrister in chambers in Lincoln’s Inn London. He has the MSc in Construction Law and Arbitration from King’s College London and he is a member of the Chartered Institute of Arbitrators. He spent more than ten years as Legal Counsel with Bovis Lend Lease a construction and project management multi-national where he advised on and negotiated every type of construction contract and represented the company on major projects and disputes including multi-million pound construction litigation. He is dual qualified as a solicitor (non-practising). He has the following experience in Construction contracts and disputes: • In depth knowledge of every form of standard building contract • Advised on tender documents and terms and conditions and drafted amendments over many years • Advised on all associated contract documents of bonds, guarantees, collateral warranties, novation agreements and consultants’ appointments • Negotiated with leading city law firms on every type of building contract • Particular knowledge and experience of negotiation and drafting of Private Finance Initiative Hospital projects and Building Schools for the Future Facilities (BSF) Management contracts • Comprehensive knowledge of all Private Finance Initiative contractual documents • Drafted, negotiated and advised upon Facilities Management BSF contracts and Medical Equipment contracts and sub-contracts with suppliers on three major hospital projects at Havering and Roehampton in London and Leeds Oncology and Building Schools for the Future. • Comprehensive knowledge and experience of ADR in construction Adjudications, Arbitrations and Mediations • Conducted adjudications against leading London city construction law firms in submitting Notice of Intention to Adjudicate and Referral Notices, conducting arguments over jurisdiction of the adjudicator and natural justice legal and contractual arguments in general • Drafted pleadings, court and Alternative Disputes Resolution documents • Conducted litigation in the Court of Appeal, High Court (including in the enforcement of Adjudicator’s decision in the Technology and Construction Contracts Court) • Knowledge and experience of Housing Grants Construction and Regeneration Act 1996 as amended and case law on enforcement of Adjudicators’ decisions in the Technology and Construction Contracts.

12 Old Square Chambers, Lincoln’s Inn, London

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12 Old Square Chambers 12 Old Square Lincoln’s Inn London WC2A 3TX Tel: 020 7404 0875 Fax: 020 7404 8377 DX: 130 LDE E-mail: clerks@12oldsquare.com

United Kingdom Litigation Construction June 2017 Vol.10, No. 39, Spring 2017