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A trap for the unwary

Alexander Learmonth warns of the dangers of split trials and part 36 offers

5 May 2015

One aspect of the new Civil Procedure Rules (CPR) part 36 that has not attracted much comment is the new rule 36.12. However,
it presents a potential trap for offerors, with a serious risk
of professional liability,
and lawyers need to review urgently their current litigation files to see if any of their cases might be caught.

Subtle change

Under the new CPR rule 36.11(3), 'the court's permission is required to accept a part 36 offer where… (d) a trial is in progress'. Therefore, as before, one cannot just interrupt a trial when it starts to go badly and accept an offer to settle.

But there is a subtle change from the old rule 36.9(3), which applied where 'the trial has started'. The new rule thus allows for the possibility that there may be more than one trial, and that a...

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