ASK THE JUDGES.

Our panel of district judges answers more of your questions on civil procedure

Q My client claimant made a pre-action offer to settle which was rejected before the 21 days were up.

Since the commencement of proceedings, the defendant has paid in a sum which is greater than that for which the claimant offered to settle.

The defendant will not agree to pay indemnity costs or penalty interest if the claimant takes the money in court.

This is an attempt to side-step pt 36.

Can the claimant accept the payment in and have the costs and interest issues determined on a detailed assessment?

A The Civil Procedure Rules 1998 (CPR) r.36.10 entitles the claimant offeror no more than that the offer will be taken into account if the court comes to make an order for costs.

The defendant, by making a pt 36 payment in, does not disapply r.36.10 so as to remove the claimant's expectation.

The perceived difficulty arises because, if the claimant accepts the payment in, r.36.13 entitles him to his standard basis costs without an order.

But we do not think that r.36.13 limits the court's powers by prohibiting an order for costs on the indemnity basis: it merely states the claimant's minimum entitlement.

Otherwise, the claimant would be in a better position if he delayed accepting until he needed permission (r.36.12(3)) which would clearly contravene the overriding objective.

R.36.15(5)(b) clearly envisages that a question as to costs may remain after acceptance.

The panel believes that the claimant could accept the payment in and apply for an order for indemnity costs.

Whether the application was granted would be a matter for the judge hearing it.

Interest is a different matter.

The amount paid in is inclusive of interest unless the defendant's notice has indicated otherwise (r.36.22).

We assume it did not.

In that case, the claimant would probably not be entitled to interest (at normal or enhanced rates) in addition to the amount paid in, if he accepts.

Nor, of course, would the claimant have been entitled to interest if his pre-action offer had been accepted, unless the offer contained some provision as to interest.

You will have to chose between accepting and applying for costs on the indemnity basis or applying for permission to accept on terms that your client's costs are paid on an indemnity basis.

Given the uncertainty, we doubt that you would be criticised either way.

The latter may be slightly safer.

Q CPR pt 52 appears in relation to family proceedings to apply only to appeals to the Court of Appeal.

In family appeals with which I have been concerned from district judge to circuit judge, I have been told by the courts that pt 52 applies and that the new form N161 must be completed.

Is this correct?

A Pt 52 does not apply to first instance appeals from district judges in family cases.

Family proceedings are generally excepted from the CPR by r.2.1.

So an appeal from a district judge proceeds just as it has always done, despite the changes introduced on 26 April 1999 and 2 May 2000.

There is no need to ask for permission to appeal or to complete form N161.

But watch this space.

There was a consultation paper Reform of the Family Appeals System which invited responses by 25 April 2000, so things may change soon.

The answers given should not be considered binding on any court.

E-mail questions to: steve.jones@lawsociety.org.uk