The Forum of Complex Injury Lawyers defends use of Part 36 offers

The Forum of Complex Injury Lawyers (FOCIS) has attacked a report by the Civil Procedure Rule Committee (CPRC) which has suggested that Part 36 offers should be reformed in order to stop claimant lawyers from making cynical offers.

Ed Pepperall QC, a member of the CPRC’s Part 36 sub-committee, said last month that Part 36 had the potential for abuse by claimant lawyers who could make offers that were designed to let them benefit from Part 36 cost consequences, while expecting that the offer would never be accepted all along. He also said that the rules around Part 36 were too technical.

In a letter to the CPRC, Julian Chamberlayne, chairman of FOCIS, said members were concerned to see the reference to “cynical claimant offers” in the report by Pepperall. According to Litigation Futures, FOCIS believes that wider amendments to Part 36 could risk undermining the Jackson reforms and creating greater disparity.

“There is also a risk that the high degree of certainty on how the rule operates, itself an important way of avoiding disproportionate costs, would be lost,” said Chamberlayne.

FOCIS also said that the claim that Part 36 was too technical was wrong. “There is no unnecessary technicality which makes compliance with the terms of Part 36 difficult,” said the body. “The rules are clear.”

It also said that Lord Justice Jackson himself viewed Part 36 as having been a success and that “other than addressing the underlying need for the rule to operate with parity between claimant and defendant, any proposed amendments should be viewed with considerable caution”.

Mark Dugdale