By Sean Linley, Costs Draftsman  
Two significant Part 36 changes will be applied to the Civil Procedure Rules next year in a move that will require litigators to proceed with caution. 
As part of the next statutory instrument in April 2021, there are two points that will attract notable interest: 
1. The Costs sub-committee concluded that a Part 36 offer should not be permitted to exclude interest and PD47 will be amended to reflect this. This will form of part of April 2021 SI update. 
2. CPR 36.5(5) will be amended as follows (on issue of whether Part 36 offers should be made with provisions for interest following expiry of the relevant period for acceptance): 
“Part 36 offer to accept a sum of money may make provision for accrual of interest on such sum after the date specified in rule 36.5(4). If such an offer does not make any such provision it is treated as inclusive of all interest up to the date of acceptance.” 
The change to 36.5(5) means that Part 36 offers can be more specific about interest but the additional detail could make it more difficult to determine the eventual winner. 
In my opinion, this is a move which could cause confusion if it is not handled properly. 
Why is it being implemented? 
The issue first came to light on the back of the judgment of King v City of London Corporation when LJ Newey commented (paragraph 86) that in his opinion “there were arguments in favour of permitting Part 36 offers to bade made which are exclusive of interest, at least in assessment proceedings if not in the general run of claims.” 
It is now conceivable that parties could have cases where interest is in dispute and it may be difficult for parties to make Part 36 offers that are inclusive of interest. By not allowing flexibility, this could create difficulties in quantifying Part 36 offers. 
Who will it affect? 
Part 36 attracts significant benefits (see CPR r 36.17) and all litigators will be affected by this noteworthy change. 
If an offer is not set out correctly, a solicitor could end up in a scenario where they beat their offer but are not afforded the benefits. 
At Carter Burnett, our recommendation is that practitioners use the Court Form as this gives the greatest degree of protection in terms of compliance with Part 36 provisions. 
Changes to CPR r36.5 and PD 47 do not come into effect until April 2021 with the next statutory instrument. 
But when it does, our Costs Lawyers will be going the extra mile to ensure all of the Part 36 offers we make are 100% compliant. We will also advise clients about compliance in respect of Part 36 offers made over the course of any litigation. 
In my experience, practitioners should review Part 36 offers on existing matters to ensure they are compliant. A failure to do so could see Part 36 benefits not granted on technical grounds. 
Should any doubt remain, our team of costs experts are on hand to offer specialist advice – please don’t hesitate get in touch for assistance. 
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