The Civil Procedure (Amendment No. 3) Rules 2004

Citation, commencement and interpretation

1.  These Rules may be cited as the Civil Procedure (Amendment No.3) Rules 2004 and shall come into force on the date of entry into force of section 100 of the Courts Act 2003(1).

2.  In these Rules a reference to a Part or rule by number alone means the Part or rule so numbered in the Civil Procedure Rules 1998(2).

Amendment to the Civil Procedure Rules 1998

3.  In rule 36.3(1), after “rules”, insert “36.2A(2),”.

4.  After rule 36.2, insert—

“Personal injury claims for future pecuniary loss

36.2A.— (1) This rule applies to a claim for damages for personal injury which is or includes a claim for future pecuniary loss.

(2) An offer to settle such a claim will not have the consequences set out in this Part unless it is made by way of a Part 36 offer under this rule, and where such an offer is or includes an offer to pay the whole or part of any damages in the form of a lump sum, it will not have the consequences set out in this Part unless a Part 36 payment of the amount of the lump sum offer is also made.

(3) Where both a Part 36 offer and a Part 36 payment are made under this rule—

(a) the offer must include details of the payment, and

(b) rules 36.11(1) and (2) and 36.13(1) and (2) apply as if there were only a Part 36 offer.

(4) A Part 36 offer to which this rule applies may contain an offer to pay, or an offer to accept—

(a) the whole or part of the damages for future pecuniary loss in the form of—

(i) either a lump sum or periodical payments, or

(ii) both a lump sum and periodical payments,

(b) the whole or part of any other damages in the form of a lump sum.

(5) A Part 36 offer to which this rule applies—

(a) must state the amount of any offer to pay the whole or part of any damages in the form of a lump sum;

(b) may state what part of the offer relates to damages for future pecuniary loss to be accepted in the form of a lump sum;

(c) may state, where part of the offer relates to other damages to be accepted in the form of a lump sum, what amounts are attributable to those other damages;

(d) must state what part of the offer relates to damages for future pecuniary loss to be paid or accepted in the form of periodical payments and must specify—

(i) the amount and duration of the periodical payments,

(ii) the amount of any payments for substantial capital purchases and when they are to be made, and

(iii) that each amount is to vary by reference to the retail prices index (or to some other named index, or that it is not to vary by reference to any index); and

(e) must state either that any damages which take the form of periodical payments will be funded in a way which ensures that the continuity of payment is reasonably secure in accordance with section 2(4) of the Damages Act 1996 or how such damages are to be paid and how the continuity of their payment is to be secured.

(6) Where a Part 36 payment includes a lump sum for damages for future pecuniary loss, the Part 36 payment notice may state the amount of that lump sum.

(7) Where the defendant makes a Part 36 offer to which this rule applies and which offers to pay damages in the form of both a lump sum and periodical payments, the claimant may only give notice of acceptance of the offer as a whole.”

5.  In rule 36.4—

(a) in paragraphs (2)(a), (3)(b) and (4) after “Part 36 payment” insert “or Part 36 offer made under rule 36.2A”;

(b) in paragraph (3) after “Part 36 payment notice” insert “or Part 36 offer made under rule 36.2A”;

(c) in paragraph (3) after “the Part 36 offer”, in both places, insert “made under this rule.”.

6.  In rule 36.10—

(a) in paragraph (3) for “If the offeror” substitute “Subject to paragraph (3A), if the offeror”;

(b) after paragraph (3) insert—

“(3A) In a claim to which rule 36.2A applies, if the offeror is a defendant who wishes to offer to pay the whole or part of any damages in the form of a lump sum—

(a) he must make a Part 36 payment within 14 days of service of the claim form; and

(b) the amount of the payment must be not less than the lump sum offered before proceedings began.”;

(c) in paragraph (4)(b) after “paragraph (3)” insert “or (3A)”.

7.  In rule 36.20, in paragraph (1)(a) delete “or” and in paragraph (1)(b) after “offer” insert “or”—

“(c) in a claim to which rule 36.2A applies, fails to obtain a judgment which is more advantageous than the Part 36 offer made under that rule.”

8.  In rule 36.21, in paragraph (1), after “Part 36 offer” insert “(including a Part 36 offer made under rule 36.2A)”.

9.  In rule 36.23—

(a) in paragraph (4), for “rule 36.20” substitute “rule 36.20(1)(a)” and

(b) after paragraph (4), insert—

“(4A) For the purposes of rule 36.20(1)(c), where the court is determining whether the claimant has failed to obtain a judgment which is more advantageous than the Part 36 offer made under rule 36.2A, the amount of any lump sum paid into court which it takes into account is to be the amount of the gross sum specified in the Part 36 payment notice.”

10.  For the heading of Part 41, substitute “DAMAGES”.

11.  In Part 41—

(a) for the table of contents, substitute the table of contents and section heading as set out in Part I of Schedule 1 to these Rules;

(b) in rule 41.1—

(i) in paragraph (1), for “This Part” substitute “This Section of this Part”;

(ii) in paragraph (2), for “Part” substitute “Section”; and

(c) after rule 41.3, insert Section II as set out in Part II of Schedule 1 to these Rules.

Phillips of Worth Matravers, M.R.

John Dyson, L.J.

Rupert Jackson, J.

Terence Etherton, J.

Stephen Oliver-Jones

Steven Whitaker

Carlos Dabezies

Nicholas Burkill

Richard Walford

David di Mambro

Juliet Herzog

Andrew Parker

Philip Rainey

Peter Candon

I allow these Rules

Falconer of Thoroton, C.

Dated 24th November 2004