Types of Offer

Type of Offer/ResponseImmediately binding if accepted?

(see Note 1 below)
Can it be shown to judge? Example of when appropriate
Open OfferYes  Yes - at any timeIf do not mind whether judge sees the offer before judgment (or positively want to be able to show to judge before judgment)
Without PrejudiceYes  Only if accepted If do not want judge to see the offer (even after judgment) 
Without Prejudice and Subject to ContractNo NoIf want to first negotiate to see if agreement in principle is possible (before spending further time/money finalising finer details of a binding settlement).
Without Prejudice Except as to Costs

or

Without Prejudice Save as to Costs

or

Calderbank Offer
 YesIf accepted: Yes.

If not accepted: only after judgment
If only want judge to see the offer after judgment when costs are considered. 
Part 36 Offer


 YesIf accepted: Yes. 

If not accepted: only after judgment
If only want judge to see the offer after judgment when costs are considered. See Note 2 below.


Note 1: In the above table when it is indicated that an offer is binding if accepted this is subject to the general requirements of the law for a binding agreement: for example the terms must be sufficiently certain for an agreement to be binding. Also certain types of agreements have to be in a particular form and/or require the court's approval before becoming binding.


Note 2: A Part 36 offer is a special type of offer which can be made in (or before) civil court proceedings which are subject to the Civil Procedure Rules (CPR). A Part 36 Offer is a type of Without Prejudice Except as to Costs offer which has to meet certain conditions to qualify as a Part 36 Offer. Any offer which cannot meet those conditions has to be made as an ordinary Without Prejudice Except as to Costs offer, not as a Part 36 Offer. Whilst the court, when deciding what costs order to make after judgment, can take account of any offer which can be shown to the judge after judgment, the normal costs consequences of beating, or failing to beat, a Part 36 Offer are specified in some detail in Part 36 of the CPR and are normally followed by the judge.

Disclaimer

The above explanation of the law relating to settlement offers is only an overview and in order to be reasonably concise in tabular form I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but contact me for advice 

This page was lasted updated in September 2017          Disclaimer