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The Civil Procedure Rules 1998

Type Statutory-Instrument

Publication 1998-12-10

Last updated 2026-04-06

State In force

Department King's Printer of Acts of Parliament

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(f) the facilities available to the court at which the claim is being dealt with, particularly in relation to—

(i) any disabilities of a party or potential witness;

(ii) any special measures needed for potential witnesses; or

(iii) security;

(g) whether the making of a declaration of incompatibility under section 4 of the Human Rights Act 1998 has arisen or may arise;

(h) in the case of civil proceedings by or against the Crown, as defined in rule 66.1(2), the location of the relevant government department or officers of the Crown and, where appropriate, any relevant public interest that the matter should be tried in London.

(3) Where in proceedings in the County Court the court considers that there is a real possibility that a party would in the course of the proceedings be required to disclose material the disclosure of which would be damaging to the interests of national security, the court must transfer the proceedings to the High Court.

Procedure

30.4

(1) Where the court orders proceedings to be transferred, it will give notice of that transfer to all the parties.

(2) An order made before the transfer of the proceedings shall not be affected by the order to transfer.

(3) Where—

(a) proceedings for the enforcement of a judgment or order for possession of land are transferred by the County Court to the High Court; and

(b) the land which is the subject of the possession order is located within the area of a District Registry,

then, unless the court orders otherwise on or following transfer, the transfer shall be to that District Registry and all applications made in the High Court in relation to such transferred proceedings (including for any stay or suspension of any writ) shall be made in that District Registry.

Transfer between Divisions and to and from a specialist list

30.5

(1) The High Court may order proceedings in any Division of the High Court to be transferred to another Division.

(2) A judge dealing with claims in a specialist list may order proceedings to be transferred to or from that list.

(3) An application for the transfer of proceedings to or from a specialist list must be made to a judge dealing with claims in that list.

(4) An order for transfer of proceedings between the Chancery Division and a King’s Bench Division specialist list may only be made with the consent of the Chancellor of the High Court.

Power to specify place where hearings are to be held

30.6

The court may specify the place (for instance, a particular County Court hearing centre) where the trial or some other hearing in any proceedings is to be held and may do so without ordering the proceedings to be transferred.

Transfer of control of money in court

30.7

The court may order that control of any money held by it under rule 21.11 (control of money recovered by or on behalf of a child or protected party) be transferred to another court or County Court hearing centre if that court or hearing centre would be more convenient.

Certiorari or prohibition

30.8

(1) This rule applies if, in any proceedings in the King’s Bench Division (other than proceedings in the Commercial or Admiralty Courts), a district registry of the High Court or the County Court, a party’s statement of case raises an issue relating to the application of Chapter I or II of Part I of the Competition Act 1998 or to a claim under section 101 of the Digital Markets, Competition and Consumers Act 2024.

(2) Rules 30.2 and 30.3 do not apply.

(3) The court must transfer the proceedings to the Chancery Division of the High Court at the Royal Courts of Justice.

(4) If any such proceedings which have been commenced in the King’s Bench Division or a Circuit Commercial Court fall within the scope of rule 58.1(2), any party to those proceedings may apply for the transfer of the proceedings to the Commercial Court, in accordance with rule 58.4(2) and rule 30.5(3). If the application is refused, the proceedings must be transferred to the Chancery Division of the High Court at the Royal Courts of Justice.

PART 31 — DISCLOSURE AND INSPECTION OF DOCUMENTS

Scope of this Part	Rule 31.1
Meaning of disclosure	Rule 31.2
Right of inspection of a disclosed document	Rule 31.3
Meaning of document	Rule 31.4
Disclosure limited to standard disclosure	Rule 31.5
Standard disclosure—what documents are to be disclosed	Rule 31.6
Duty of search	Rule 31.7
Duty of disclosure limited to documents which are or have been in a party’s control	Rule 31.8
Disclosure of copies	Rule 31.9
Procedure for standard disclosure	Rule 31.10
Duty of disclosure continues during proceedings	Rule 31.11
Specific disclosure or inspection	Rule 31.12
Ordering a party to request another person to disclose a document	Rule 31.12A
Disclosure in stages	Rule 31.13
Documents referred to in statements of case etc.	Rule 31.14
Inspection and copying of documents	Rule 31.15
Disclosure before proceedings start	Rule 31.16
Orders for disclosure against a person not a party	Rule 31.17
Rules not to limit other powers of the court to order disclosure	Rule 31.18
Claim to withhold inspection or disclosure of a document	Rule 31.19
Restriction on use of a privileged document inspection of which has been inadvertently allowed	Rule 31.20
Consequence of failure to disclose documents or permit inspection	Rule 31.21
Subsequent use of disclosed documents and completed Electronic Documents Questionnaires	Rule 31.22

Scope of this Part

31.1

(1) This Part sets out rules about the disclosure and inspection of documents.

(2) This Part applies to all claims except a claim on the small claims track.

Meaning of disclosure

31.2

A party discloses a document by stating that the document exists or has existed.

Right of inspection of a disclosed document

31.3

(1) A party to whom a document has been disclosed has a right to inspect that document except where—

(a) the document is no longer in the control of the party who disclosed it;

(b) the party disclosing the document has a right or a duty to withhold inspection of it; or

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meaning of document

31.4

In this Part—

“document” means anything in which information of any description is recorded; and

“copy”, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.

Disclosure limited to standard disclosure

31.5

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Unless the court otherwise orders, paragraphs (3) to (8) apply to all intermediate and multi-track claims, other than those which include a claim for personal injuries.

(3) Not less than 14 days before the first case management conference , if any, each party must file and serve a report verified by a statement of truth, which—

(a) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;

(b) describes where and with whom those documents are or may be located;

(d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and

(e) states which of the directions under paragraphs (7) or (8) are to be sought.

(4) In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report required by paragraph (3).

(5) Not less than seven days before the first case management conference, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.

(6) If—

(a) the parties agree proposals for the scope of disclosure; and

(b) the court considers that the proposals are appropriate in all the circumstances,

the court may approve them without a hearing and give directions in the terms proposed.

(7) At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure—

(a) an order dispensing with disclosure;

(b) an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;

(d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;

(e) an order that a party give standard disclosure;

(f) any other order in relation to disclosure that the court considers appropriate.

(8) The court may at any point give directions as to how disclosure is to be given, and in particular—

(a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;

(b) whether lists of documents are required;

(d) in what format documents are to be disclosed (and whether any identification is required);

(e) what is required in relation to documents that once existed but no longer exist; and

(f) whether disclosure shall take place in stages.

(9) To the extent that the documents to be disclosed are electronic, the provisions of Practice Direction 31B – Disclosure of Electronic Documents will apply in addition to paragraphs (3) to (8).

Standard disclosure—what documents are to be disclosed

31.6

Standard disclosure requires a party to disclose only—

(a) the documents on which he relies; and

(b) the documents which—

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

Duty of search

31.7

(1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).

(2) The factors relevant in deciding the reasonableness of a search include the following—

(a) the number of documents involved;

(b) the nature and complexity of the proceedings;

(d) the significance of any document which is likely to be located during the search.

(3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.

Duty of disclosure limited to documents which are or have been in party’s control

31.8

(1) A party’s duty to disclose documents is limited to documents which are or have been in his control.

(2) For this purpose a party has or has had a document in his control if—

(a) it is or was in his physical possession;

(b) he has or has had a right to possession of it; or

Disclosure of copies

31.9

(1) A party need not disclose more than one copy of a document.

(2) A copy of a document that contains a modification, obliteration or other marking or feature—

(a) on which a party intends to rely; or

(b) which adversely affects his own case or another party’s case or supports another party’s case;

shall be treated as a separate document.

Procedure for standard disclosure

31.10

(1) The procedure for standard disclosure is as follows.

(2) Each party must make and serve on every other party, a list of documents in the relevant practice form.

(3) The list must identify the documents in a convenient order and manner and as concisely as possible.

(4) The list must indicate—

(a) those documents in respect of which the party claims a right or duty to withhold inspection; and

(i) those documents which are no longer in the party’s control; and

(ii) what has happened to those documents.

Duty of disclosure continues during proceedings

31.11

(1) Any duty of disclosure continues until the proceedings are concluded.

(2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party.

Specific disclosure or inspection

31.12

(1) The court may make an order for specific disclosure or specific inspection.

(2) An order for specific disclosure is an order that a party must do one or more of the following things—

(a) disclose documents or classes of documents specified in the order;

(b) carry out a search to the extent stated in the order;

(3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).

Disclosure in stages

31.13

The parties may agree in writing, or the court may direct, that disclosure or inspection or both shall take place in stages.

Documents referred to in statements of case etc.

31.14

(1) A party may inspect a document mentioned in—

(a) a statement of case;

(b) a witness statement;

(d) an affidavit(GL).

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report)

(2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been disclosed in the proceedings.

Inspection and copying of documents

31.15

Where a party has a right to inspect a document—

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

(c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

Disclosure before proceedings start

31.16

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started[^f00037].

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where—

(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

(c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to—

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.

(4) An order under this rule must—

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require him, when making disclosure, to specify any of those documents—

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may—

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection.

Orders for disclosure against a person not a party

31.17

(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings[^f00038].

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where—

(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

(4) An order under this rule must—

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents—

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may—

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection.

Rules not to limit other powers of the court to order disclosure

31.18

Rules 31.16 and 31.17 do not limit any other power which the court may have to order—

(a) disclosure before proceedings have started; and

(b) disclosure against a person who is not a party to proceedings.

Claim to withhold inspection or disclosure of a document

31.19

(1) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.

(2) Unless the court orders otherwise, an order of the court under paragraph (1)—

(a) must not be served on any other person; and

(b) must not be open to inspection by any person.

(3) A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing—

(a) that he has such a right or duty; and

(b) the grounds on which he claims that right or duty.

(4) The statement referred to in paragraph (3) must be made—

(a) in the list in which the document is disclosed; or

(b) if there is no list, to the person wishing to inspect the document.

(5) A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld.

(6) For the purpose of deciding an application under paragraph (1) (application to withhold disclosure) or paragraph (3) (claim to withhold inspection) the court may—

(a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and

(b) invite any person, whether or not a party, to make representations.

(7) An application under paragraph (1) or paragraph (5) must be supported by evidence.

(8) This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest.

Restriction on use of a privileged document inspection of which has been inadvertently allowed

31.20

Where a party inadvertently allows a privileged(GL) document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.

Consequence of failure to disclose documents or permit inspection

31.21

A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

Subsequent use of disclosed documents

31.22

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where—

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

(3) An application for such an order may be made—

(a) by a party; or

(b) by any person to whom the document belongs.

(4) For the purpose of this rule, an Electronic Documents Questionnaire which has been completed and served by another party pursuant to Practice Direction 31B is to be treated as if it is a document which has been disclosed.

PART 32 — EVIDENCE

Power of court to control evidence	Rule 32.1
Evidence of witnesses—general rule	Rule 32.2
Evidence by video link or other means	Rule 32.3
Requirement to serve witness statements for use at trial	Rule 32.4
Use at trial of witness statements which have been served	Rule 32.5
Evidence in proceedings other than at trial	Rule 32.6
Order for cross-examination	Rule 32.7
Form of witness statement	Rule 32.8
Witness summaries	Rule 32.9
Consequence of failure to serve witness statement or summary	Rule 32.10
Cross-examination on a witness statement	Rule 32.11
Use of witness statements for other purposes	Rule 32.12
Availability of witness statements for inspection	Rule 32.13
False statements	Rule 32.14
Affidavit evidence	Rule 32.15
Form of affidavit	Rule 32.16
Affidavit made outside the jurisdiction	Rule 32.17
Notice to admit facts	Rule 32.18
Notice to admit or produce documents	Rule 32.19

Power of court to control evidence

32.1

(1) The court may control the evidence by giving directions as to—

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.

(3) The court may limit cross-examination(GL).

Evidence of witnesses—general rule

32.2

(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved—

(a) at trial, by their oral evidence given in public; and

(b) at any other hearing, by their evidence in writing.

(2) This is subject—

(a) to any provision to the contrary contained in these Rules or elsewhere; or

(b) to any order of the court.

(3) The court may give directions—

(a) identifying or limiting the issues to which factual evidence may be directed;

(b) identifying the witnesses who may be called or whose evidence may be read; or

Evidence by video link or other means

32.3

The court may allow a witness to give evidence through a video link or by other means.

Requirement to serve witness statements for use at trial

32.4

(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

(2) The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.

(3) The court may give directions as to—

(a) the order in which witness statements are to be served; and

(b) whether or not the witness statements are to be filed.

Use at trial of witness statements which have been served

32.5

(1) If—

(a) a party has served a witness statement; and

(b) he wishes to rely at trial on the evidence of the witness who made the statement,

he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence.

Evidence in proceedings other than at trial

32.6

(1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.

(2) At hearings other than the trial, a party may ... rely on the matters set out in—

(a) his statement of case; or

(b) his application notice,

if the statement of case or application notice is verified by a statement of truth.

Order for cross-examination

32.7

(1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence.

(2) If the court gives permission under paragraph (1) but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.

Form of witness statement

32.8

A witness statement must comply with the requirements set out in Practice Direction 32.

Witness summaries

32.9

(1) A party who—

(a) is required to serve a witness statement for use at trial; but

(b) is unable to obtain one,

may apply, without notice, for permission to serve a witness summary instead.

(2) A witness summary is a summary of—

(a) the evidence, if known, which would otherwise be included in a witness statement; or

(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.

(3) Unless the court orders otherwise, a witness summary must include the name and address of the intended witness.

(4) Unless the court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.

(5) Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary.

Consequence of failure to serve witness statement or summary

32.10

If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

Cross-examination on a witness statement

32.11

Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement whether or not the statement or any part of it was referred to during the witness’s evidence in chief(GL).

Use of witness statements for other purposes

32.12

(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.

(2) Paragraph (1) does not apply if and to the extent that—

(a) the witness gives consent in writing to some other use of it;

(b) the court gives permission for some other use; or

(3) This rule applies to affidavits in the same way as it applies to witness statements.

Availability of witness statements for inspection

32.13

(1) A witness statement which stands as evidence in chief(GL) is open to inspection during the course of the trial unless the court otherwise directs.

(2) Any person may ask for a direction that a witness statement is not open to inspection.

(3) The court will not make a direction under paragraph (2) unless it is satisfied that a witness statement should not be open to inspection because of—

(a) the interests of justice;

(b) the public interest;

(d) the nature of any confidential information (including information relating to personal financial matters) in the statement; or

(e) the need to protect the interests of any child or protected party.

(4) The court may exclude from inspection words or passages in the statement.

False statements

32.14

Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth.

Affidavit evidence

32.15

(1) Evidence must be given by affidavit(GL) instead of or in addition to a witness statement if this is required by the court, a provision contained in any other rule, a practice direction or any other enactment.

(2) Nothing in these Rules prevents a witness giving evidence by affidavit(GL) at a hearing other than the trial if he chooses to do so in a case where paragraph (1) does not apply, but the party putting forward the affidavit(GL) may not recover the additional cost of making it from any other party unless the court orders otherwise.

Form of affidavits

32.16

An affidavit(GL) must comply with the requirements set out in Practice Direction 32.

Affidavit made outside the jurisdiction

32.17

A person may make an affidavit(GL) outside the jurisdiction in accordance with—

(a) this Part; or

(b) the law of the place where he makes the affidavit(GL).

Notice to admit facts

32.18

(1) A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.

(2) A notice to admit facts must be served no later than 21 days before the trial.

(3) Where the other party makes any admission in response to the notice, the admission may be used against him only—

(a) in the proceedings in which the notice to admit is served; and

(b) by the party who served the notice.

(4) The court may allow a party to amend or withdraw any admission made by him on such terms as it thinks just.

Notice to admit or produce documents

32.19

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

(2) A notice to prove a document must be served—

(a) by the latest date for serving witness statements; or

(b) within 7 days of disclosure of the document,

whichever is later.

PART 33 — MISCELLANEOUS RULES ABOUT EVIDENCE

Introductory	Rule 33.1
Notice of intention to rely on hearsay evidence	Rule 33.2
Circumstances in which notice of intention to rely on hearsay evidence is not required	Rule 33.3
Power to call witness for cross-examination on hearsay evidence	Rule 33.4
Credibility	Rule 33.5
Use of plans, photographs and models as evidence	Rule 33.6
Evidence of finding on question of foreign law	Rule 33.7
Evidence of consent of trustee to act	Rule 33.8

Introductory

33.1

In this Part—

(a) “hearsay” means a statement, made otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated; and

(b) references to hearsay include hearsay of whatever degree.

Notice of intention to rely on hearsay evidence

33.2

(1) Where a party intends to rely on hearsay evidence at trial and either—

(a) that evidence is to be given by a witness giving oral evidence; or

(b) that evidence is contained in a witness statement of a person who is not being called to give oral evidence;

that party complies with section 2(1)(a) of the Civil Evidence Act 1995[^f00039] by serving a witness statement on the other parties in accordance with the court’s order.

(2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement—

(a) inform the other parties that the witness is not being called to give oral evidence; and

(b) give the reason why the witness will not be called.

(3) In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which—

(a) identifies the hearsay evidence;

(b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and

(4) The party proposing to rely on the hearsay evidence must—

(a) serve the notice no later than the latest date for serving witness statements; and

(b) if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so.

Circumstances in which notice of intention to rely on hearsay evidence is not required

33.3

Section 2(1) of the Civil Evidence Act 1995 (duty to give notice of intention to rely on hearsay evidence) does not apply—

(a) to evidence at hearings other than trials;

(aa) to an affidavit or witness statement which is to be used at trial but which does not contain hearsay evidence;

(b) to a statement which a party to a probate action wishes to put in evidence and which is alleged to have been made by the person whose estate is the subject of the proceedings; or

Power to call witness for cross-examination on hearsay evidence

33.4

(1) Where a party—

(a) proposes to rely on hearsay evidence; and

(b) does not propose to call the person who made the original statement to give oral evidence,

the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.

(2) An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant.

Credibility

33.5

(1) Where a party—

(a) proposes to rely on hearsay evidence; but

(b) does not propose to call the person who made the original statement to give oral evidence; and

the party who so wishes must give notice of his intention to the party who proposes to give the hearsay statement in evidence.

(2) A party must give notice under paragraph (1) not more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him.

Use of plans, photographs and models as evidence

33.6

(1) This rule applies to evidence (such as a plan, photograph or model) which is not—

(a) contained in a witness statement, affidavit(GL) or expert’s report;

(b) to be given orally at trial; or

(2) This rule includes documents which may be received in evidence without further proof under section 9 of the Civil Evidence Act 1995[^f00040].

(3) Unless the court orders otherwise the evidence shall not be receivable at a trial unless the party intending to put it in evidence has given notice to the other parties in accordance with this rule.

(4) Where the party intends to use the evidence as evidence of any fact then, except where paragraph (6) applies, he must give notice not later than the latest date for serving witness statements.

(5) He must give notice at least 21 days before the hearing at which he proposes to put in the evidence, if—

(a) there are not to be witness statements; or

(b) he intends to put in the evidence solely in order to disprove an allegation made in a witness statement.

(6) Where the evidence forms part of expert evidence, he must give notice when the expert’s report is served on the other party.

(7) Where the evidence is being produced to the court for any reason other than as part of factual or expert evidence, he must give notice at least 21 days before the hearing at which he proposes to put in the evidence.

(8) Where a party has given notice that he intends to put in the evidence, he must give every other party an opportunity to inspect it and to agree to its admission without further proof.

Evidence of finding on question of foreign law

33.7

(1) This rule sets out the procedure which must be followed by a party who intends to put in evidence a finding on a question of foreign law by virtue of section 4(2) of the Civil Evidence Act 1972[^f00041].

(2) He must give any other party notice of his intention.

(3) He must give the notice—

(a) if there are to be witness statements, not later than the latest date for serving them; or

(b) otherwise, not less than 21 days before the hearing at which he proposes to put the finding in evidence.

(4) The notice must—

(a) specify the question on which the finding was made; and

(b) enclose a copy of a document where it is reported or recorded.

33.8

A document purporting to contain the written consent of a person to act as trustee and to bear his signature verified by some other person is evidence of such consent.

PART 34 — WITNESSES, DEPOSITIONS AND EVIDENCE FOR FOREIGN COURTS

Scope of this Part	Rule 34.1
Witness summonses	Rule 34.2
Issue of a witness summons	Rule 34.3
Witness summons in aid of inferior court or of tribunal	Rule 34.4
Time for serving a witness summons	Rule 34.5
Who is to serve a witness summons	Rule 34.6
Right of witness to travelling expenses and compensation for loss of time	Rule 34.7
Fines imposed under section 55 of the County Courts Act 1984	Rule 34.7A
Evidence by deposition	Rule 34.8
Conduct of examination	Rule 34.9
Enforcing attendance of witness	Rule 34.10
Use of deposition at a hearing	Rule 34.11
Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial	Rule 34.12
Where a person to be examined is out of the jurisdiction—letter of request	Rule 34.13
Fees and expenses of examiner	Rule 34.14
Examiners of the court	Rule 34.15

II—EVIDENCE FOR FOREIGN COURTS
Interpretation	Rule 34.16
Application for order	Rule 34.17
Examination	Rule 34.18
Dealing with deposition	Rule 34.19
Claim to privilege	Rule 34.20
Order under 1975 Act as applied by Patents Act 1977	Rule 34.21

. . .
. . .	. . .
. . .	. . .
. . .	. . .

Scope of this Part

34.1

(1) This Section of this Part provides—

(a) for the circumstances in which a person may be required to attend court to give evidence or produce a document; and

(b) for a party to obtain evidence before a hearing to be used at the hearing.

(2) In this Section, reference to a hearing includes a reference to the trial.

Witness summonses

34.2

(1) A witness summons is a document issued by the court requiring a witness to—

(a) attend court to give evidence; or

(b) produce documents to the court.

(2) A witness summons must be in the relevant practice form.

(3) There must be a separate witness summons for each witness.

(4) A witness summons may require a witness to produce documents to the court either—

(a) on the date fixed for a hearing; or

(b) on such date as the court may direct.

(5) The only documents that a summons under this rule can require a person to produce before a hearing are documents which that person could be required to produce at the hearing.

Issue of a witness summons

34.3

(1) A witness summons is issued on the date entered on the summons by the court.

(2) A party must obtain permission from the court where he wishes to—

(a) have a summons issued less than 7 days before the date of the trial;

(b) have a summons issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial; or

(c) have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the trial.

(3) A witness summons must be issued by—

(a) the court where the case is proceeding; or

(b) the court where the hearing in question will be held.

(4) The court may set aside(GL) or vary a witness summons issued under this rule.

Witness summons in aid of inferior court or of tribunal

34.4

(1) The court may issue a witness summons in aid of an inferior court or of a tribunal.

(2) The court which issued the witness summons under this rule may set it aside.

(3) In this rule, “inferior court or tribunal” means any court or tribunal that does not have power to issue a witness summons in relation to proceedings before it.

Time for serving a witness summons

34.5

(1) The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal.

(2) The court may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the court or tribunal.

(3) A witness summons which is—

(a) served in accordance with this rule; and

(b) requires the witness to attend court to give evidence,

is binding until the conclusion of the hearing at which the attendance of the witness is required.

Who is to serve a witness summons

34.6

(1) A witness summons is to be served by the court unless the party on whose behalf it is issued indicates in writing, when he asks the court to issue the summons, that he wishes to serve it himself.

(2) Where the court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the court office, the money to be paid or offered to the witness under rule 34.7.

Right of witness to travelling expenses and compensation for loss of time

34.7

At the time of service of a witness summons the witness must be offered or paid—

(a) a sum reasonably sufficient to cover his expenses in travelling to and from the court; and

(b) such sum by way of compensation for loss of time as may be specified in Practice Direction 34A.

Evidence by deposition

34.8

(1) A party may apply for an order for a person to be examined before the hearing takes place.

(2) A person from whom evidence is to be obtained following an order under this rule is referred to as a “deponent” and the evidence is referred to as a “deposition”.

(3) An order under this rule shall be for a deponent to be examined on oath before—

(a) a judge;

(b) an examiner of the court; or

Conduct of examination

34.9

(1) Subject to any directions contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a trial.

(2) If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent.

(3) The examiner may conduct the examination in private if he considers it appropriate to do so.

(4) The examiner must ensure that the evidence given by the witness is recorded in full.

(5) The examiner must send a copy of the deposition—

(a) to the person who obtained the order for the examination of the witness; and

(b) to the court where the case is proceeding.

(6) The party who obtained the order must send each of the other parties a copy of the deposition which he receives from the examiner.

Enforcing attendance of witness

34.10

(1) If a person served with an order to attend before an examiner—

(a) fails to attend; or

(b) refuses to be sworn for the purpose of the examination or to answer any lawful question or produce any document at the examination,

a certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the deposition.

(2) On the certificate being filed, the party requiring the deposition may apply to the court for an order requiring that person to attend or to be sworn or to answer any question or produce any document, as the case may be.

(3) An application for an order under this rule may be made without notice.

(4) The court may order the person against whom an order is made under this rule to pay any costs resulting from his failure or refusal.

Use of deposition at a hearing

34.11

(1) A deposition ordered under rule 34.8 may be given in evidence at a hearing unless the court orders otherwise.

(2) A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party.

(3) He must serve the notice at least 21 days before the day fixed for the hearing.

(4) The court may require a deponent to attend the hearing and give evidence orally.

(5) Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement for the purposes of rule 32.13 (availability of witness statements for inspection).

Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial

34.12

(1) Where the court orders a party to be examined about his or any other assets for the purpose of any hearing except the trial, the deposition may be used only for the purpose of the proceedings in which the order was made.

(2) However, it may be used for some other purpose—

(a) by the party who was examined;

(b) if the party who was examined agrees; or

Where a person to be examined is out of the jurisdiction—letter of request

34.13

(1) This rule applies where a party wishes to take a deposition from a person who is—

(a) out of the jurisdiction; ...

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1A) The High Court may order the issue of a letter of request to the judicial authorities of the country in which the proposed deponent is.

(2) A letter of request is a request to a judicial authority to take the evidence of that person, or arrange for it to be taken.

(3) The High Court may make an order under this rule in relation to County Court proceedings and tribunal proceedings.

(4) If the government of a country ... allows a person appointed by the High Court to examine a person in that country, the High Court may make an order appointing a special examiner for that purpose.

(5) A person may be examined under this rule on oath or affirmation or in accordance with any procedure permitted in the country in which the examination is to take place.

(6) If the High Court makes an order for the issue of a letter of request, the party who sought the order must file with the Foreign Process Section of the Central Office of the High Court in the Royal Courts of Justice—

(a) the following documents and, except where paragraph (7) applies, a translation of them—

(i) a draft letter of request;

(ii) a statement of the issues relevant to the proceedings;

(iii) a list of questions or the subject matter of questions to be put to the person to be examined; and

(b) an undertaking to be responsible for the Secretary of State’s expenses.

(7) There is no need to file a translation if—

(a) English is one of the official languages of the country where the examination is to take place; or

(b) a practice direction has specified that country as a country where no translation is necessary.

Fees and expenses of examiner

34.14

(1) An examiner of the court may charge a fee for the examination.

(2) He need not send the deposition to the court unless the fee is paid.

(3) The examiner’s fees and expenses must be paid by the party who obtained the order for examination.

(4) If the fees and expenses due to an examiner are not paid within a reasonable time, he may report that fact to the court.

(5) The court may order the party who obtained the order for examination to deposit in the court office a specified sum in respect of the examiner’s fees and, where it does so, the examiner will not be asked to act until the sum has been deposited.

(6) An order under this rule does not affect any decision as to the party who is ultimately to bear the costs of the examination.

Examiners of the court

34.15

(1) The Lord Chancellor shall appoint persons to be examiners of the court.

(2) The persons appointed shall be barristers or solicitor-advocates who have been practising for a period of not less than three years.

(3) The Lord Chancellor may revoke an appointment at any time.

PART 35 — EXPERTS AND ASSESSORS

Duty to restrict expert evidence	Rule 35.1
Interpretation and definitions	Rule 35.2
Experts—overriding duty to the court	Rule 35.3
Court’s power to restrict expert evidence	Rule 35.4
General requirement for expert evidence to be given in written report	Rule 35.5
Written questions to experts	Rule 35.6
Court’s power to direct that evidence is to be given by a single joint expert	Rule 35.7
Instructions to a single joint expert	Rule 35.8
Power of court to direct party to provide information	Rule 35.9
Contents of report	Rule 35.10
Use by one party of expert’s report disclosed by another	Rule 35.11
Discussions between experts	Rule 35.12
Consequence of failure to disclose expert’s report	Rule 35.13
Expert’s right to ask court for directions	Rule 35.14
Assessors	Rule 35.15

Duty to restrict expert evidence

35.1

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

Interpretation

35.2

(1) A reference to an ‘expert’ in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.

(2) ‘Single joint expert’ means an expert instructed to prepare a report for the court on behalf of two or more of the parties (including the claimant) to the proceedings.

Experts—overriding duty to the court

35.3

(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

Court’s power to restrict expert evidence

35.4

(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify—

(a) the field in which expert evidence is required and the issues which the expert evidence will address; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted ... it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.

(3A) Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.

(Paragraph 7 of Practice Direction 35 sets out some of the circumstances the court will consider when deciding whether expert evidence should be given by a single joint expert.)

(3B) In a soft tissue injury claim, permission—

(a) may normally only be given for one expert medical report;

(b) may not be given initially unless the medical report is a fixed cost medical report. Where the claimant seeks permission to obtain a further medical report, if the report is from a medical expert in any of the following disciplines—

(i) Consultant Orthopaedic Surgeon;

(ii) Consultant in Accident and Emergency Medicine;

(iii) General Practitioner registered with the General Medical Council; or

(iv) Physiotherapist registered with the Health and Care Professions Council,

the report must be a fixed cost medical report.

(3C) In a claim for a whiplash injury, whether or not it is part of a claim for other injuries—

(a) permission—

(i) may normally only be given for one expert medical report in respect of the claim for the whiplash injury; and

(ii) may not be given initially unless the medical report is a fixed cost medical report; and

(b) where the claimant seeks permission to obtain a further medical report in respect of the claim for the whiplash injury only, the report must be a fixed cost medical report if the report is from a medical expert in any of the following disciplines—

(i) Consultant Orthopaedic Surgeon;

(ii) Consultant in Accident and Emergency Medicine;

(iii) General Practitioner registered with the General Medical Council; or

(iv) Physiotherapist registered with the Health and Care Professions Council.

(3D) Where, in respect of a claim for a whiplash injury, the claimant lives outside England and Wales, but chooses to be examined in England or Wales, paragraph (3C) applies.

(3E) Where the claimant obtains a medical report in respect of a more serious injury suffered on the same occasion as the whiplash injury, the claimant may be given permission to use that report instead of a fixed cost medical report under paragraph (3C) provided that—

(a) the report is from a doctor who is listed on the General Medical Council’s Specialist Register; and

(b) the report provides evidence of the whiplash injury.

(3F) Unless paragraph (3D) applies, where, in respect of a claim for a whiplash injury—

(a) the claimant lives outside England and Wales;

(b) permission is given for a medical report,

the medical report (or, if there is more than one report, the first report) must be obtained from a person who is recognised by the country in which they practise as—

(i) being a medical expert; and

(ii) having the required medical qualifications for the purposes of diagnosis and prognosis of a whiplash injury.

(3G) In this rule—

(a) in respect of a soft tissue injury claim, ‘fixed cost medical report’ and ‘soft tissue injury claim’ have the meanings ascribed to them by paragraph 1.1(10A) and (16A), respectively, of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents; and

(b) in respect of a claim for a whiplash injury, ‘fixed cost medical report’ and ‘whiplash injury’ have the meanings ascribed to them by paragraph 1.2(17) and (38), respectively, of the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents.

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.

General requirement for expert evidence to be given in a written report

35.5

(1) Expert evidence is to be given in a written report unless the court directs otherwise.

(2) If a claim is on the small claims track or the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

Written questions to experts

35.6

(1) A party may put written questions about an expert’s report (which must be proportionate) to—

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7.

(2) Written questions under paragraph (1)—

(a) may be put once only;

(b) must be put within 28 days of service of the expert’s report; and

unless in any case,

(i) the court gives permission; or

(ii) the other party agrees.

(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.

(4) Where—

(a) a party has put a written question to an expert instructed by another party ...; and

(b) the expert does not answer that question,

the court may make one or both of the following orders in relation to the party who instructed the expert—

(i) that the party may not rely on the evidence of that expert; or

(ii) that the party may not recover the fees and expenses of that expert from any other party.

Court’s power to direct that evidence is to be given by a single joint expert

35.7

(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.

(2) Where the parties who wish to submit the evidence (“the relevant parties”) cannot agree who should be the single joint expert, the court may—

(a) select the expert from a list prepared or identified by the relevant parties; or

(b) direct that the expert be selected in such other manner as the court may direct.

Instructions to a single joint expert

35.8

(1) Where the court gives a direction under rule 35.7 for a single joint expert to be used, any relevant party may give instructions to the expert.

(2) When a party gives instructions to the expert that party must, at the same time, send a copy to the other relevant parties.

(3) The court may give directions about—

(a) the payment of the expert’s fees and expenses; and

(b) any inspection, examination or experiments which the expert wishes to carry out.

(4) The court may, before an expert is instructed—

(a) limit the amount that can be paid by way of fees and expenses to the expert; and

(b) direct that some or all of the relevant parties pay that amount into court.

(5) Unless the court otherwise directs, the relevant parties are jointly and severally liable(GL) for the payment of the expert’s fees and expenses.

Power of court to direct a party to provide information

35.9

Where a party has access to information which is not reasonably available to another party, the court may direct the party who has access to the information to—

(a) prepare and file a document recording the information; and

(b) serve a copy of that document on the other party.

Contents of report

35.10

(1) An expert’s report must comply with the requirements set out in Practice Direction 35.

(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.

(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(4) The instructions referred to in paragraph (3) shall not be privileged(GL) against disclosure but the court will not, in relation to those instructions—

(a) order disclosure of any specific document; or

(b) permit any questioning in court, other than by the party who instructed the expert,

unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.

Use by one party of expert’s report disclosed by another

35.11

Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.

Discussions between experts

35.12

(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to—

(a) identify and discuss the expert issues in the proceedings; and

(b) where possible, reach an agreed opinion on those issues.

(2) The court may specify the issues which the experts must discuss.

(3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which—

(a) they agree; and

(b) they disagree, with a summary of their reasons for disagreeing.

(4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.

(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.

Consequence of failure to disclose expert’s report

35.13

A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.

Expert’s right to ask court for directions

35.14

(1) Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.

(2) Experts must, unless the court orders otherwise, provide copies of the proposed requests for directions under paragraph (1)—

(a) to the party instructing them, at least 7 days before they file the requests; and

(b) to all other parties, at least 4 days before they file them.

(3) The court, when it gives directions, may also direct that a party be served with a copy of the directions.

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Assessors

35.15

(1) This rule applies where the court appoints one or more persons under section 70 of the Senior Courts Act 1981 or section 63 of the County Courts Act 1984 as an assessor.

(2) An assessor will assist the court in dealing with a matter in which the assessor has skill and experience.

(3) An assessor will take such part in the proceedings as the court may direct and in particular the court may direct an assessor to—

(a) prepare a report for the court on any matter at issue in the proceedings; and

(b) attend the whole or any part of the trial to advise the court on any such matter.

(4) If an assessor prepares a report for the court before the trial has begun—

(a) the court will send a copy to each of the parties; and

(b) the parties may use it at trial.

(5) The remuneration to be paid to an assessor is to be determined by the court and will form part of the costs of the proceedings.

(6) The court may order any party to deposit in the court office a specified sum in respect of an assessor’s fees and, where it does so, the assessor will not be asked to act until the sum has been deposited.

(7) Paragraphs (5) and (6) do not apply where the remuneration of the assessor is to be paid out of money provided by Parliament.

PART 36 — OFFERS TO SETTLE

Title	Rule number
Scope of this Part	Rule 36.1
Section 1 – Part 36 Offers to Settle
GENERAL
Scope of this Section	Rule 36.2
Definitions	Rule 36.3
Application of Part 36 to appeals	Rule 36.4
MAKING OFFERS
Form and content of a Part 36 offer	Rule 36.5
Part 36 offers – defendant’s offer	Rule 36.6
Time when a Part 36 offer is made	Rule 36.7
CLARIFYING, WITHDRAWING AND CHANGING THE TERMS OF OFFERS
Clarification of a Part 36 offer	Rule 36.8
Withdrawing or changing the terms of a Part 36 offer generally	Rule 36.9
Withdrawing or changing the terms of a Part 36 offer before the expiry of the relevant period	Rule 36.10
ACCEPTING OFFERS
Acceptance of a Part 36 offer	Rule 36.11
Acceptance of a Part 36 offer in a split-trial case	Rule 36.12
Costs consequences of acceptance of a Part 36 offer	Rule 36.13
Other effects of acceptance of a Part 36 offer	Rule 36.14
Acceptance of a Part 36 offer made by one or more, but not all, defendants	Rule 36.15
UNACCEPTED OFFERS
Restriction on disclosure of a Part 36 offer	Rule 36.16
Costs consequences following judgment	Rule 36.17
PERSONAL INJURY CASES
Personal injury claims for future pecuniary loss	Rule 36.18
Offer to settle a claim for provisional damages	Rule 36.19
Deduction of benefits and Lump sum payments	Rule 36.20
MISCELLANEOUS
Cases in which the offeror’s costs have been limited to court fees	Rule 36.21
Section II - Claims to which Sections VI, VII or VIII of Part 45 Apply
Scope of this Section and definitions	Rule 36.22
Costs consequences of acceptance of a Part 36 offer	Rule 36.23
Costs consequences following judgment	Rule 36.24
Section III - RTA Protocol and EL/PL Protocol offers to settle
Scope of this Section	Rule 36.25
Form and content of a Protocol offer	Rule 36.26
Time when a Protocol offer is made	Rule 36.27
General provisions	Rule 36.28
Restrictions on disclosure of a Protocol offer	Rule 36.29
Costs consequences following judgment	Rule 36.30
Deduction of benefits	Rule 36.31

Scope of this Part

36.1

(1) This Part contains a self-contained procedural code about offers to settle made pursuant to the procedure set out in this Part (“Part 36 offers”).

(2) Section I of this Part contains general rules about Part 36 offers.

(3) Section II of this Part contains rules about Part 36 offers where a claim is one to which Section VI (fixed costs in the fast track), Section VII (fixed costs in the intermediate track) or Section VIII (claims for noise-induced hearing loss) of Part 45 applies.

(4) Section III of this Part contains rules about offers to settle where the parties have followed the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”) or the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (“the EL/PL Protocol”) and have started proceedings under Part 8 in accordance with Practice Direction 49F.

Part 36 offers and Part 36 payments—general provisions

36.2

(1) This Section—

(a) applies to an offer to settle to which Section II of this Part applies, unless otherwise stated; but

(b) does not apply to an offer to settle to which Section III applies.

(2) Nothing in this Section prevents a party making an offer to settle in whatever way that party chooses, but if the offer is not made in accordance with rule 36.5, it will not have the consequences specified in this Section.

(Rule 44.2 requires the court to consider an offer to settle that does not have the costs consequences set out in this Section in deciding what order to make about costs.)

(3) A Part 36 offer may be made in respect of the whole, or part of, or any issue that arises in—

(a) a claim, counterclaim or other additional claim; or

(b) an appeal or cross-appeal from a decision made at a trial.

(Rules 20.2 and 20.3 provide that counterclaims and other additional claims are treated as claims and that references to a claimant or a defendant include a party bringing or defending an additional claim.)

A defendant’s offer to settle a money claim requires a Part 36 payment

36.3

In this Section—

(a) the party who makes an offer is the “offeror”;

(b) the party to whom an offer is made is the “offeree”;

(c) a “trial” means any trial in a case whether it is a trial of all issues or a trial of liability, quantum or some other issue in the case;

(d) a trial is “in progress” from the time when it starts until the time when judgment is given or handed down;

(e) a case is “decided” when all issues in the case have been determined, whether at one or more trials;

(f) “trial judge” includes the judge (if any) allocated in advance to conduct a trial; and

(g) “the relevant period” means—

(i) in the case of an offer made not less than 21 days before a trial, the period specified under rule 36.5(1)(c) or such longer period as the parties agree;

(ii) otherwise, the period up to the end of such trial.

Defendant’s offer to settle the whole of a claim which includes both a money claim and a non-money claim

36.4

(1) Except where a Part 36 offer is made in appeal proceedings, it shall have the consequences set out in this Section only in relation to the costs of the proceedings in respect of which it is made, and not in relation to the costs of any appeal from a decision in those proceedings.

(2) Where a Part 36 offer is made in appeal proceedings, references in this Section to a term in the first column below shall be treated, unless the context requires otherwise, as references to the corresponding term in the second column—

Term	Corresponding term
Claim	Appeal
Counterclaim	Cross-appeal
Case	Appeal proceedings
Claimant	Appellant
Defendant	Respondent
Trial	Appeal hearing
Trial judge	Appeal judge

Form and content of a Part 36 offer

36.5

(1) A Part 36 offer must—

(a) be in writing;

(b) make clear that it is made pursuant to Part 36;

(c) 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 36.13 or 36.23 if the offer is accepted;

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

(e) state whether it takes into account any counterclaim.

(Rule 36.7 makes provision for when a Part 36 offer is made.)

(2) Paragraph (1)(c) does not apply if the offer is made less than 21 days before the start of a trial.

(3) In appropriate cases, a Part 36 offer must contain such further information as is required by rule 36.18 (personal injury claims for future pecuniary loss), rule 36.19 (offer to settle a claim for provisional damages), and rule 36.20 (deduction of benefits).

(4) A Part 36 offer which offers to pay or offers to accept a sum of money will be treated as inclusive of all interest until—

(a) the date on which the period specified under rule 36.5(1)(c) expires; or

(b) if rule 36.5(2) applies, a date 21 days after the date the offer was made.

(5) A Part 36 offer to accept a sum of money may make provision for accrual of interest on such sum after the date specified in paragraph (4). If such an offer does not make any such provision, it shall be treated as inclusive of all interest up to the date of acceptance if it is later accepted.

Notice of a Part 36 payment

36.6

(1) Subject to rules 36.18(3) and 36.19(1), a Part 36 offer by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money.

(2) 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 will not be treated as a Part 36 offer unless the offeree accepts the offer.

Offer to settle a claim for provisional damages

36.7

(1) A Part 36 offer may be made at any time, including before the commencement of proceedings.

(2) A Part 36 offer is made when it is served on the offeree.

(Part 6 provides detailed rules about service of documents.)

Time when a Part 36 offer or a Part 36 payment is made and accepted

36.8

(1) The offeree may, within 7 days of a Part 36 offer being made, request the offeror to clarify the offer.

(2) If the offeror does not give the clarification requested under paragraph (1) within 7 days of receiving the request, the offeree may, unless the trial has started, apply for an order that the offeror do so.

(Part 23 contains provisions about making an application to the court.)

(3) If the court makes an order under paragraph (2), it must specify the date when the Part 36 offer is to be treated as having been made.

Clarification of a Part 36 offer or a Part 36 payment notice

36.9

(1) A Part 36 offer can 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.

(Rule 36.17(7) deals with the costs consequences following judgment of an offer which is withdrawn.)

(3) Subject to rule 36.10, such notice of withdrawal or change of terms takes effect when it is served on the offeree.

(Rule 36.10 makes provision about when permission is required to withdraw or change the terms of an offer before the expiry of the relevant period.)

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

(a) the offeror may withdraw the offer or change its terms without the permission of the court; or

(b) the offer may be automatically withdrawn in accordance with its terms.

(5) Where the offeror changes the terms of a Part 36 offer to make it more advantageous to the offeree—

(a) such improved offer shall be treated, not as the withdrawal of the original offer; but as the making of a new Part 36 offer on the improved terms; and

(b) subject to rule 36.5(2), the period specified under rule 36.5(1)(c) shall be 21 days or such longer period (if any) identified in the written notice referred to in paragraph (2).

Court to take into account offer to settle made before commencement of proceedings

36.10

(1) Subject to rule 36.9(1), this rule applies where the offeror serves notice before expiry of the relevant period of withdrawal of the offer or change of its terms to be less advantageous to the offeree.

(2) Where this rule applies—

(a) if the offeree has not served notice of acceptance of the original offer by the expiry of the relevant period, the offeror’s notice has effect on the expiry of that period; and

(b) if the offeree serves notice of acceptance of the original offer before the expiry of the relevant period, that acceptance has effect unless the offeror applies to the court for permission to withdraw the offer or to change its terms—

(i) within 7 days of the offeree’s notice of acceptance; or

(ii) if earlier, before the first day of trial.

(3) On an application under paragraph (2)(b), the court may give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.

Time for acceptance of a defendant’s Part 36 offer or Part 36 payment

36.11

(1) A Part 36 offer is accepted by serving written notice of acceptance on the offeror.

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