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Qualifications to Part 36 payment in monetary claims

First, if a defendant has made an interim payment to the claimant and decides not to offer any further sum in settlement of the action, he can make a Part 36 offer based on the interim payment (r 36.5(5). Clearly, this exception will be of limited use, as almost by definition, an interim payment is of a sum which is less than the amount that the defendant believes he is liable for. Also, if the defendant wants to offer more than the amount provided by the interim payment, he must make a Part 36 payment of that additional sum in order to comply with r 36.3 and the payment in must state that it takes into account the interim payment (r 36.6(2)(d)). Thus, when a defendant has already made an interim payment to the claimant and decides to make that payment the final offer in settlement, then the defendant can make an offer to settle by reference to that interim payment without making any further payment into court. That offer to settle will, for all intents and purposes, be treated as if it were a payment into court in the sum of the interim payment.