I was recently before a District Judge in a Stage 3 hearing where the Judge remarked how very few parties actually make use of the ‘Part 36’ provisions within Stage 3.
By this, the Judge meant that it was rare to find the Part B figures (which triggers the Part 36 consequences) are different from the Part A figures. I too find this to be the case and it is a pleasant surprise when either or both parties have made improved offers.
It really is a missed trick by parties engaged in Stage 2 negotiations.
Stage 2 consideration period
As we know, the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (RTA Protocol) dictates what happens during the Stage 2 consideration.
The Defendant has 35 days to consider the Stage 2 Settlement Pack, which is divided into two periods. The initial 15-day period is for the Defendant to make an initial offer, and the remaining period is for further negotiation. The total consideration period can be extended by mutual agreement. If an offer is made within 5 days of the total consideration period’s end, there will be a 5-day further consideration period, during which no further offers can be made by either party.
Defendant must accept or counter-offer using Stage 2 Settlement Pack Form during initial period or agreed extension. When making a counter-offer, the Defendant will propose specific amounts for each category of damage and explain any reductions. This can help the Claimant during negotiations and focus on areas in dispute.
If parties fail to agree on original damages or additional damages, the claimant must send the Court Proceedings Pack (Part A and B) form to the defendant. Part A should contain the final schedule of losses, supporting evidence, and comments. Part B should contain the final offer and counter-offer from the Settlement Pack Form. This is where the issues arises.
Single offer negotiations
The Part A and Part B figures in the Court Proceedings Pack are the same because both parties have made a single offer with no adjustments.
There could be some confusion about what goes in Part A and Part B:-
7.64 Where the parties do not reach an agreement on
(1) the original damages within the periods specified in paragraphs 7.35 to 7.37; or
(2) the original damages and, where relevant, the additional damages under paragraph 7.51,
the claimant must send to the defendant the Court Proceedings Pack (Part A and Part B) Form which must contain—
(a) in Part A, the final schedule of the claimant’s losses and the defendant’s responses comprising only the figures specified in subparagraphs (1) and (2) above, together with supporting comments and evidence from both parties on any disputed heads of damage; and
(b) in Part B, the final offer and counter offer from the Stage 2 Settlement Pack Form and, where relevant, the offer and any final counter offer made under paragraph 7.53.
It might be that the phrase ‘the final schedule’ in 7.63(2)(a) means the final figures as they are at the end of the consideration period. However, it goes on to say ‘comprising only the figures specified in subparagraphs (1) and (2) above’. Those figures are clearly the original offers in the Stage 2 settlement pack.
Part 36
Looking at Part 36 (and for ease, I am looking at the pre-1st October 2023 version) we can see the following:-
- A ‘protocol offer’ is Part B of the Court Proceedings Pack, containing the final total amount for both parties’ offers – CPR 36.25(2)
- The protocol offers are deemed to be exclusive of interest – CPR 36.27(a)
- The protocol offer must not be communicated to the Court until the claim is determined – CPR 36.28(2)
CPR 36.29 sets out the consequences. When the Claimant beats its protocol offer, the following applies:-
(4) Where paragraph (1)(c) applies, the court must order the defendant to pay—
(a) interest on the whole of the damages awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date specified in rule 36.26;
(b) the fixed costs in rule 45.20;
(c) interest on those fixed costs at a rate not exceeding 10% above base rate; and
(d) an additional amount calculated in accordance with rule 36.17(4)(d).
When the Claimant fails to beat the Defendant’s protocol offer, the following applies:-
(2) Where paragraph (1)(a) applies, the court must order the claimant to pay—
(a) the fixed costs in rule 45.26; and
(b) interest on those fixed costs from the first business day after the deemed date of the Protocol offer under rule 36.26.
Tactics
It’s not unheard of for a Claimant to beat their Part B offers and I’m familiar with the calculations required in such cases. However, this occurrence shouldn’t be as rare as it is. On fewer occasions, I have been involved in cases where Defendants have made well-pitched Part B offers that the Claimant has failed to beat this.
As above, it is usually the case that the Defendant makes an offer that is simply to low (usually on the PSLA element) and the Claimant’s offer is too high (knowing the Court will award more than the Defendant’s offer. Instead, the Defendant could benefit from making its first offer a very lowball offer (which will appear in the Part A pack) but a better-pitched offer at the very low end of what is reasonable. Accept reasonable special damages that are being claimed.
The Claimant, in a similar vein, makes its inflated offer (so it appears in Part A) and then make an offer in the higher regions of what could be awarded. I have been at two Stage 3s recently where sensible offers were made at Stage 2 that even without the uplift due to the JC Guideline increase, beating the Part B was entirely plausable. Claimants ought not attempt to claim special damages in full where there is no or insufficient evidence. Sometimes the failure to beat a Part B comes down to specials being claimed that would never be recovered.
Using Part A and Part B effectively will benefit either party, but more so – Claimants.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.