The Competition Appeal Tribunal Rules 2015

OFFERS TO SETTLE

Settlement offers

45.—(1) For the purposes of this rule and rules 46 to 49—

“Rule 45 Offer” means an offer to settle which is made in accordance with this rule; and

“relevant period” means—

(a)

in the case of an offer made not less than 21 days before the main substantive hearing of the claim, the period specified under paragraph (3)(c) or such longer period as the parties agree; or

(b)

in any other case, the period up to the end of the main substantive hearing of the claim.

(2) A Rule 45 Offer may be made at any time, including before the commencement of proceedings.

(3) A Rule 45 Offer shall—

(a) be in writing;

(b) state on its face that it is intended to be a Rule 45 Offer under these Rules;

(c) except where the Rule 45 Offer is made less than 21 days before the start of the substantive hearing of the claim, specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with rule 48 if the offer is accepted;

(d) state whether it relates to the whole of the claim, to part of it or to an issue that arises in it and, if so, to which part or issue;

(e) state whether it takes into account any counterclaim; and

(f) where it is made by some, but not all, of a number of defendants, state whether or not it is made in satisfaction of the claim against all defendants.

(4) A Rule 45 Offer which offers to pay or offers to accept a sum of money is to be treated as inclusive of all interest until—

(a) the date on which the period specified under paragraph (3)(c) expires; or

(b) where paragraph (3)(c) does not apply, a date 21 days after the date the Rule 45 Offer was made.

(5) A defendant’s offer that includes an offer to pay all or part of the sum at a date later than 14 days following the date of acceptance is not to be treated as a Rule 45 Offer unless the claimant accepts the offer.

(6) A Rule 45 Offer is accepted by serving written notice of acceptance on the offeror.

(7) A Rule 45 Offer may—

(a) be accepted any time before the substantive hearing of the claim, unless it has already been withdrawn;

(b) only be accepted after the substantive hearing of the claim has started with the permission of the Tribunal.

(8) The fact that a Rule 45 Offer has been made shall not be communicated to the members of the Tribunal deciding the case until all questions of liability and the amount of money to be awarded have been agreed between the parties or determined by the Tribunal.

(9) Paragraph (8) does not apply where—

(a) the offeror and offeree agree in writing to that effect; or

(b) although the case has not been decided—

(i) any part of, or issue in, the case has been decided; and

(ii) the Rule 45 Offer relates only to parts or issues that have been decided.

(10) In a case to which paragraph (9)(b)(i) applies, the members of the Tribunal deciding the case may be told whether or not there are Rule 45 Offers other than those referred to in paragraph (9)(b)(ii), but must not be told the terms of any such other offers unless the offeror and offeree agree in writing to that effect.

(11) Where the claimant wishes to accept a Rule 45 Offer made by one or more, but not all, of a number of defendants—

(a) if the claimant alleges that the defendants are jointly and severally liable and the Rule 45 Offer states that it is in satisfaction of the claim against all defendants, the claimant may accept the Rule 45 Offer and the Tribunal shall then direct that the claim against the defendants who did not make the Rule 45 Offer be discontinued;

(b) if the claimant alleges that the defendants are jointly and severally liable and the Rule 45 Offer states that it is in satisfaction of the claim against those defendants making it, the claimant may—

(i) serve notice on the defendants making the Rule 45 Offer agreeing not to continue its claims against them in return for payment of the sum offered; and

(ii) continue with the claims against the other defendants;

(c) if the claimant alleges that the defendants are severally but not jointly liable, the claimant may—

(i) accept the Rule 45 Offer; and

(ii) continue with its claims against the other defendants;

(d) if the defendants are sued only jointly or in the alternative, the claimant may accept the Rule 45 Offer if—

(i) the claimant discontinues the claim against those defendants who have not made the Rule 45 Offer; and

(ii) those defendants give written consent to the acceptance of the Rule 45 Offer.

(12) Service of a notice under paragraph (11)(b)(i) is to be treated as acceptance of the Rule 45 Offer for the purposes of rules 47 to 49 and references in those rules to notice of acceptance are to be construed as including a reference to notice under paragraph (11)(b)(i).

(13) A Rule 45 Offer is to be treated as “without prejudice except as to costs”.

(14) This rule does not preclude a party from making an offer to settle at any time or by any other means but, if not made in accordance with this rule, it shall not have the consequences specified in rules 48 and 49.

Clarification of a Rule 45 Offer

46.—(1) The offeree may, within seven days of a Rule 45 Offer being made, request the offeror to clarify the offer.

(2) If the offeror does not give the clarification requested under paragraph (1) within seven days of receiving the request, the offeree may, unless the substantive hearing of the claim has started, apply for an order that the offeror do so.

(3) If the Tribunal makes an order under paragraph (2), it shall specify the date when the Rule 45 Offer is to be treated as having been made.

Withdrawing or changing a Rule 45 Offer

47.—(1) A Rule 45 Offer may only be withdrawn, or its terms changed, if the offeree has not previously served notice of acceptance.

(2) The offeror withdraws the offer or changes its terms by serving written notice of the withdrawal or change of terms on the offeree.

(3) Subject to paragraph (1), after the expiry of the relevant period—

(a) the offeror may withdraw the Rule 45 Offer or change its terms without the permission of the Tribunal; or

(b) the Rule 45 Offer may be automatically withdrawn in accordance with its terms.

(4) Where the offeror changes the terms of a Rule 45 Offer to make it more advantageous to the offeree, such improved offer is to be treated, not as the withdrawal of the original Rule 45 Offer, but as the making of a new Rule 45 Offer on improved terms.

(5) Subject to paragraphs (1) and (6), if the offeror serves notice, before the expiry of the relevant period, of withdrawal of the Rule 45 Offer or change of its terms to be less advantageous to the offeree, that notice has effect on the expiry of the relevant period.

(6) If the offeree serves notice of acceptance of the original Rule 45 Offer before expiry of the relevant period but after the offeror has served a notice of withdrawal of that offer or change of its terms to be less advantageous to the offeree, that acceptance has effect unless the Tribunal gives permission for the original Rule 45 Offer to be withdrawn or its terms changed.

(7) The offeror shall apply for such permission—

(a) within seven days of the offeree’s notice of acceptance; or

(b) if earlier, before the first day of the substantive hearing.

(8) On an application under paragraph (7), the Tribunal may give permission for the original Rule 45 Offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original Rule 45 Offer and that it is in the interests of justice to give permission.

Costs consequences of acceptance of a Rule 45 Offer

48.—(1) Subject to paragraphs (4) and (5), where a Rule 45 Offer is accepted within the relevant period, the claimant is entitled to the relevant costs of the proceedings up to the date on which notice of acceptance of the Rule 45 Offer was served on the offeror.

(2) Subject to paragraph (4), where a Rule 45 Offer is accepted after the expiry of the relevant period, unless the parties have agreed the liability for costs or the Tribunal otherwise directs—

(a) the claimant is entitled to the relevant costs of the proceedings up to the date on which the relevant period expired; and

(b) the offeree is liable for the offeror’s relevant costs for the period from the date of expiry of the relevant period to the date on which notice of acceptance was served on the offeror.

(3) The relevant costs for the purposes of paragraphs (1) and (2) are the costs related to the proceedings against the defendants making or accepting the Rule 45 Offer, except where rule 45(11)(a) applies when they are the costs of the proceedings against all defendants.

(4) Where—

(a) a Rule 45 Offer made less than 21 days before the start of the substantive hearing of the claim is accepted, or

(b) subject to paragraph (5), a Rule 45 Offer which does not relate to the whole of the claim is accepted at any time,

the Tribunal shall make an order as to costs unless the parties have agreed the liability for costs.

(5) Where—

(a) a defendant’s Rule 45 Offer relates to part only of the claim; and

(b) at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim,

the claimant is only entitled to the costs of such part of the claim unless the Tribunal otherwise directs.

Costs consequences following judgment

49.—(1) This rule applies where a Rule 45 Offer is not accepted and upon judgment being handed down—

(a) a claimant fails to obtain a judgment more advantageous than a defendant’s Rule 45 Offer; or

(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Rule 45 Offer.

(2) Where paragraph (1)(a) applies, the Tribunal shall, unless it considers it unjust to do so, order that any defendant who made the Rule 45 Offer, either alone or jointly with any other defendant, is entitled to—

(a) costs from the date on which the relevant period expired; and

(b) interest on those costs.

(3) Where paragraph (1)(b) applies, the Tribunal shall, unless it considers it unjust to do so, order that the claimant is entitled to—

(a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

(b) costs on the indemnity basis from the date on which the relevant period expired;

(c) interest on those costs at a rate not exceeding 10% above base rate; and

(d) an additional amount to be determined by the Tribunal in accordance with CPR Rule 36.17(4)(d)(1).

(4) In considering whether it would be unjust to make the orders referred to in paragraphs (1) and (2), the Tribunal shall take into account all the circumstances of the case including—

(a) the terms of any Rule 45 Offer;

(b) the stage in the proceedings when any Rule 45 Offer was made, including in particular how long before the substantive hearing of the claim started the offer was made;

(c) the information available to the parties to the Rule 45 Offer at the time when the Rule 45 Offer was made;

(d) the conduct of the parties to the Rule 45 Offer with regard to the giving or refusal to give information for the purposes of enabling the Rule 45 Offer to be made or evaluated; and

(e) whether the offer was a genuine attempt to settle the proceedings.

(5) Paragraphs (2) and (3) do not apply to a Rule 45 Offer—

(a) which has been withdrawn;

(b) which has been changed so that its terms are less advantageous to the offeree, where the offeree has beaten the less advantageous offer; or

(c) made less than 21 days before the substantive hearing of the claim, unless the Tribunal has abridged the relevant period.

(1)

Part 36 of the Civil Procedure Rules 1998 (S.I. 1998/3132) was substituted by S.I. 2014/3299.