Student ID U1734558

Module Civil and Criminal Litigation

Module Code LA6010
 Trumplethinskin & Solicitors
1 Salway Place
London
E15 2EA
U 1734558
10TH Jane 2020

Miss Jess Finlay,

99 Nottingham Road,
Stoke on Trent
ST15 6FG
Reference: U1734558/01/AD

Dear Ms Jess,
I am writing to advise you regarding the incident you came across with, on 22/06/2012 at
Eves (an interior design shop).in the situation I understood, I would like to suggest you Pre-
action Protocol known as CPR 36 offer (‘the offer’) in the total sum of £24,983 against Eves
(an interior design shop) to settle the whole of your claim. I am writing to explain the
implications and advantages of this type of offers to help you decide whether or not to go for
it. By placing offer we are attempting to identify and settle the issue without issuing
proceedings in the court. After sending this letter of CPR 36 we can persuade defendant that
by doing so we both can avoid the lengthy and time consuming court proceedings or
procedures. This leaves defendant with three options either they can accept our offer, second
they can make a counter offer1 and third they can refuse to accept our offer. The first
response is the simplest, the second one give us the choice to think about while in the worst
case scenario we will, eventually, have to go through court proceedings.
It is extremely rare that a dispute is resolved or proceeded to the trial without some mutually
agreeable type of offers being made. Several offers can be made as there does not appear to
be a limit or restrictions. Although all offers made should be made purposefully and not
irrationally.
It is a formal offer to settle an action or part of an action. CPR 36 offers have significant
impacts and similarly consequences in the form of ‘costs increase’,if they are rejected. These
offers have been designed as a tactical tool to put pressure on an opponent to compromise the
dispute. They are made on ‘without prejudice save as to costs’ basis, which means that they
cannot be disclosed to any third party.

1
Under Part 20 cpr
The acceptance of a Part 36 offer, provided if has not previously been expressly withdrawn or
amended, and is usually being accepted within the ‘relevant period’ (which must not be less
than 21 days). It implicitly signifies that the offeror is agreeing to pay the offeree’s cost of
the proceedings on the standard basis up until the date of acceptance was served by the
offeree.
A part 36 offer can be accepted at any time, even outside the relevant period, by the offeree
without seeking the court’s permission.
There is, however, restrictions or limitations regarding the withdrawal or amendment of the
offer, once made. If the defence accept our offer then they will have to pay us within 14 days.
If defendant does not reply within 21 days then the formal court proceeding can be initiated. I
will thoroughly set out an explanation in this letter. Please would you make an appointment
to come and see me in person as a matter urgency. It is important for reasons set out in this
letter that you fully explore and understand the implications or outcomes of the offer.
We will make this offer or may be offers as a substitute or alternative to a lengthy and costly
legal process, to encourage Eves to settle your claim by persuading them with these offers.
We are putting them at risk of being penalised by the trial judge on costs and interest if they
reject the offer but at trail you can get £24,983 or less or more. I will discuss this in greater
detail below.
If Eves accept this offer within 21 days time period set forth, Eves will pay most of your
reasonable and corresponding legal costs and disbursements. As there are a number of
options available to consider which might require some of your time to consider, we should
proceed fairly quickly.
Before I set out some factors that may influence your decision to offer the £20,000. I would
like to explain what the cost consequences are to you as a claimant in this action.
If Eves accept your offer before 21 days your claim will no longer proceed (this is known as
stay2 and you will be entitled to the £24,983 to be paid within 14 days your acceptance.
Unless the court orders otherwise, as I have indicated above, the defendant will have to pay
most of your legal costs and disbursements up to the day I serve the notice of acceptance on
them.
If Eves cannot agree on the amount of those legal costs with us the court will assess them by
way of separate set of court proceedings and that usually results in a recovery of 60-70% of
your legal costs. If Eves accept the £24,983 offer they will be obliged to pay within 14 days
of their acceptance. As far as the payment of your legal costs is concerned, unless we agree or
the court orders or decides otherwise, Eves will also have to pay most of your legal costs and
disbursements up to xxx date but you should understand that it is highly likely that you will
be asked to pay your own legal costs and disbursements and the defendant’s legal costs and
disbursements thereafter.
Therefore if Eves minded to accept our offer it is more cost effective for both of us. You must
bear in mind though that if Eves accept this offer you will not be able to return to court for
more damages should you not recover as well as you hope from the injuries you sustained or
your recovery takes longer than you anticipated.
2
Stay order
If Eves reject this offer, the proceedings will continue. If you are awarded more than £24,983
by the trial judge and if this is only a small amount, the court is likely to order Eves to pay
most of your legal costs and disbursements from the outset of the claim to the end of the trial.
However, if you equal or are awarded a lesser sum than £24,983 then this is where you are
likely to be penalised in costs. Whilst Eves will probably be ordered to pay most of your costs
and disbursements up until day 21 of the offer being to xxx date, it is likely that you will be
ordered to pay most of the Eves’s costs and disbursements from that date to trial, plus interest
on those costs, as well as your own legal costs and disbursements from that date to trial. I
have estimated your legal costs and disbursements from here on to trial to be in the region of
£1000-£2000. It is likely that Eves will will have the similar amount too.
Unfortunately, the costs and disbursements incurred during this time period are usually the
most expensive as you can see above. I estimate these to be in the region of £1000-£2000.
You may therefore run the risk of any damages,being subsumed by such an adverse costs
order. As you can see these costs penalties could be severe notwithstanding the fact that Eves
will usually be ordered to pay most of your legal costs from the outset of your claim until day
21 of the offer being xxx date.
Now to enable you to make an informed decision on whether Eves accept or reject the offer, I
will detail below the factors that may influence your decision and enable you to weigh up and
make a decision on the offer. I do not intend to cause you undue concern at the very blunt
way and that very reason that I have explained even the basic implications of this type of
offer but it is important that you fully understand all the risks involved and have a sufficient
knowledge to decide or respond to you the offer.
I have prepared your own witness statement but have not yet had a sight of the defendant’s
witness statements yet. As required by law, both the parties will have the opportunities of
seeing each other’s witness statements during the course of this litigation process. Whilst I
believe that you have a reasonable chance of succeeding at trial, you must be aware that
litigation is not a clear cut and no person can be certain of the outcome of a case on the
evidence given on the day.
You also need to consider the implications of having no independent witness to the accident
scene and of the defendant’s allegation that you contribute to the accident. As we have
discussed earlier, any findings by the court that you were in any way partly to be blamed for
the accident, would result in a certain reduction in your damages claim.
As yet we have not seen the strength of the defendant’s evidence for this allegation but we do
know they would definitely intend to try and establish an element of contributory negligence3
on your part during the trial. The court bear in mind the mitigation, the claimant has a duty to
take reasonable steps to mitigate his/her damages.4
All these issues we need to discuss.We also need to discuss whether you are likely to receive
more than the sum now you are asking for. This may depend on whether we consider that the

3
S 1 Law Reform (Contributory Negligence) Act 1945 where any person suffers damage as the result partly of
his own fault and partly of the fault of any other person or persons….damages recoverable in respect thereof
shall be reduced to such extent as the court thinks just and equitable having regards to the claimant’s share in
the responsibility for the damage
4
Frost v Knight (1872) LR 7 Ex 111
court may determine you were partially to blame for the accident in which case the sum of
the damages would be reduced by the proportion that you were held to be at fault. The
damages awarded could also be affected by the pre-existing medical condition. You will be
aware that our assessment of the total damages you could hope to achieve in this action is in
the region of £63,780 - £73,500.5 This is considerably more than the sum of our offer of
£24983. It is also a fair assessment of the sum you could hope to achieve if the court made no
findings of contributory negligence nor considered that any pre-existing condition had any
bearing on your degree of pain, injury and suffering or the time needed to recover. Further
investigations and a supplement report are obviously needed here.It is sometimes appropriate
to seek counsel’s advice on these types of offers either in writing or at a conference as
counsel have a good idea of the awards made a trial. It may also be possible to seek to lessen
the pressure on defendants under the action by requesting an extension of more than the 21-
day period or by making their own counter-offer to settle the action. Such a counter offer
would have the effect of placing considerable pressure on us as they would then carry the
risks the court would impose if your offer was not accepted and they proceed to trial. We
need to discuss the implications of such an offer as well as whether you are yet in a position
to make a sensible counter-offer6 in view of the current unresolved, but potentially
significant, medical issue.
Additionally at our meeting we can discuss any further concerns that you may have been
concerning the offer. Whatever action you wish to decide to take, in response to the
defendant’s action, needs to be dealt with promptly or urgent basis. Defendants realistically
have 21 days time to consider the offer and that the offer provided is not withdrawn before
that time. Similarly, if you opt to seek counsel’s opinion on the offer we need to act promptly.
It may also be appropriate to continue negotiations with the solicitors acting for the
defendant.
I look forward to seeing you as soon as possible when we can discuss your thoughts on this
matter in more details and you can instruct me how you would wish to proceed further or
respond to the offer. Lastly to important mention, while this is a very difficult decision for
you to make, I would say that, in general, the fact that an offer has been made is a very
positive and helpful step in your case.
We hope that this letter will help you to understand the pre protocol action. Please let us
inform if of any of the above information is not correct. As a confirmation if you would like
to proceed please sign the enclosed copy of this letter and send it to us.

Yours sincerely,
Solicitor XXX
Trumplethinskin
Words (2145)

5
Kemp and Kemp ‘Quantum of Damages’. (Loose leaf set)
6
Under Part 20 cpr
Bibliography
Cunningham-Hill, S., Elder, K., civil Litigation 2019-2020, Oxford, Oxford University Press,
2018
Lord Justin Irwin, Judicial College, Guidelines for the assessment of general damages in
personal injury cases, Oxford, Oxford University Press, 2017.
Daejan Investments Ltd V The Park West Club Ltd [2004] BLR 223
Century Insurance v Northern Ireland Road Transport Board [1942] AC 509
Letang v Cooper [1964] EWCA Civ 5
Royal Brompton Hospital NHS Trust V Hammond & Others (No 7) [2000] EWCA Civ 106
Kemp and Kemp ‘Quantum of Damages’. (Loose leaf set)
A Publication by the Judicial ‘Guidelines for the assessment of General Damages in Personal
Injury Cases OUP