Order 26 - Offers of Compromise Flashcards
26.01 definitions (ordinary = standard basis)
business day day on which Court office open per 3.08
claim includes CC and any claim made per O 11
defendant includes D by CC and a party against whom a claim is made in accordance with O 11
ordinarily applicable basis means (a) pre 1 April 2013 - party/party basis; on or after 1 April 2013 - standard basis.
plaintiff includes a D who serves a CC and a party who makes a claim in accordance with O 11.
26.02 offers of compromise generally (can serve OOC, in writing and state per this order, state if inclusive/exclusive of costs)
(1) party can serve OOC in respect of any claim in proceeding on terms specified in offer
(2) may take into account any other claim made in the proceeding between the parties when making OOC terms
(3) (a) Must be in writing, prepared per 27.02-27.04;
(b) state prepared per this order
(4) Must state either (a) that it’s inclusive or costs or
(b) costs are in addition to the offer.
26.03 Time for making and accepting offer etc - at any time before verdict/judgment, can serve more than one OOC, at least 14 days acceptance period, cant withdraw when open - costs follow until offer made, then at court discretion, unless offer otherwise provides
(1) OOC may be served any time before verdict or judgment
(2) Can serve more than one OOC
(3) can be time limited but need to give other party at least 14 days after service
(4)(a) ACCEPTANCE is in writing before the time expiry period (14 days if none specified) or (b) verdict/ judgment, whichever is sooner
(5) Cant withdraw OOC during the time period it is open for acceptance, except with order of the court
(6) Offer open to be accepted within the time period even if you’ve sent a counter offer back during that period
(7) Upon acceptance of an offer that is exclusive of costs, unless the offer otherwise provides or court otherwise orders:
● (a) Costs are to be paid in respect of the claim up to and including the day the offer was served
● (b) Liability for costs re any subsequent period shall be at the discretion of the court; and
● (c) Any party to accepted offer may apply for taxation of costs
26.03.01 time for payment (in 28 days of acceptance unless not silent)
An OOC providing for payment of specified sum of money to a party shall, unless it otherwise provides, be taken to be offer providing for payment of sum w/n 28 days after acceptance of offer
26.04 effect of an offer (w/o prejudice unless exception)
OOC taken to be WITHOUT PREJUDICE unless the offer otherwise provides
26.05 Disclosure of offer to the court (not be disclosed unless stated to be without prejudice)
(1) No statement of fact that OOC has been made shall be contained in any pleading or affidavit. (2) where OOC rejected, except as provided by r 26.08(6), no communication with respect to OOC shall be made to Court on trial of proceeding until after all questions of liability and relief to be granted are determined.
(3) above don’t apply if OOC stated to be without prejudice.
26.06 Party under disability (not binding until court approves)
A person under disability may make or accept an OOC, but no acceptance of an offer made by a person under disability and no acceptance by a person under disability of an offer shall be binding until the Court has approved the compromise.
26.07 withdrawal of acceptance (if money not timely paid + court gives leave, can seek consequential orders)
(1) Party who has accepted an offer for payment of money can withdraw it if: (a) Money not paid (i) within time limit ((ii) or 28 days default) AND (b) Court gives leave on application of acceptor
(2) Can also seek orders (a) to restore parties as nearly as practicable to each party’s position in the proceeding at the time of the acceptance and (b) as to further conduct of proceedings
26.07.1 Failure to comply with accepted offer (effect; stay/dismiss; strikeout/ proceed)
Post-acceptance, party to accepted OOC defaults in complying with OOC obligations, any non-defaulting party may apply for order:
● (a) Giving effect to the accepted offer
● (b) Staying or dismissing the proceeding if the P is in default
● (c) Striking out D’s defence if D is in default** see below
● (d) That a claim, not the subject of the offer, shall proceed
26.07.2 Multiple Ds
(1) Above rule 26.07.1 does not apply if:
(a) Two or more Ds are alleged to be jointly or JoinSev liable to P for a debt or damages; and (b) Rights of contribution or indemnity appear to exist between the defendants
(2) But it does apply if, (a) in case of offer made by P, if offer (i) is made to all Ds and (ii) is an OOC the claim against all of them
Or
(b) In case of an offer made to P, (i) OOC claim against all Ds, and (ii) if offer is made by 2+ Ds, those Ds offer to be jointly, or jointly and severally, liable to the P for the whole of the offer
26.08 Costs consequences of failure to accept
P’s offer refused and obtains judgment equal to/better than offer–> if death/bodily injury, indemnity costs, otherwise ordinary to 11am on 2nd biz day after offer served, then indemnity
D’s offer refused, and P obtains equal or worse judgment–> D pay P’s costs on ordinary basis to 11am on 2nd BD after offer served, then P pay’s D costs
D offers and claim dismissed/D wins and P unreasonably refused –>
D gets ordinary to 11am on 2nd biz day after offer served, then indemnity
(1) Applies to OOC which hasn’t been accepted at time of verdict or judgment
(2) P offers, D refuses, P obtains judgment on claim to which the offer relates that is no less favourable to the P than terms of offer (or in other words, equal or better), then unless Crt otherwise orders, P shall be entitled:
● (a) If claim of P is for damages for/arising out of death/bodily injury - indemnity costs re: P’s claim (whole period)
● (b) If not: ordinary until 11am on second business day after offer served, and then indemnity thereafter.
(3) D offers and P refuses, and P obtains judgment on claim to which offer relates not more favourable (ie, equal or worse) to the P than terms of the offer
● (a) D pay P’s costs on ordinary basis up to 11am on second business day after offer was served;
● (b) P pays D’s costs on ordinary basis after that
(4) D offers and claim is dismissed/ D wins and P’s refusal was unreasonable (26.08(4))
● (a) D entitled to an order against P for costs on ordinary basis until 11am on second business day after offer made;
● (b) D entitled to order against P for costs thereafter on an indemnity basis
(5) Where P obtains judgment for recovery of debt/damages and—
(a) amount for which Court pronounces judgment includes an amount for interest or damages in the nature of interest; or
(b) by or under any Act Court awards plaintiff interest or damages in the nature of interest in respect of the judgment amount—
for the purpose of determining the costs consequences for (2) and (3), Court shall disregard so much of amount recovered by or awarded to plaintiff for interest or damages in nature of interest as relates to period after the day the offer of compromise was served.
(6) For (5) only, Court may be informed of fact that OOC was served, and of service date, but shall not be informed of its terms.
(7) above only applies if party satisfies court were willing/able to carry out their part of what was proposed in offer at all material times.
(8) Where the P obtains judgment for recovery of debt/damages, and the amount of debt/damages was not in dispute, but only the question of liability, paragraph (2) shall not apply unless the Court is satisfied that the plaintiff’s offer was of a genuine compromise.
26.08.1 pre-litigation offers
(if made and offeror gets judgment equal to or better than offer terms - court to take it into account - not prescriptive like 26.08)
(1) (a) If OOC made before proceedings commence, and (b) offer was rejected in reasonable time for acceptance; and (c) offeror gets judgment no less favourable than terms of offer (ie, equal to or better), court can take foregoing into account in determining what order for costs to make in respect of costs in proceeding
(2) e.g. can be taxed other than on the ordinary basis from (a) the day the offer was made, (b) the commencement of the proceeding or (c) any other time that the court thinks fit
26.10 Contributor parties
Can offer - if offer made, not accepted, and gets better judgment, costs entitlement is ordinary to 11am two business days after offer, then indemnity
(1) If 2+ parties (contributor parties) may be held liable to contribute towards amount of debt/damages, any of those parties can, w/o prejudice to that party’s defence, make offer to another party to contribute to a specified extent or amount of debt/damages
(2) If offer’s made and not accepted and offeror obtains judgment against other contributor party more favourable than terms, then unless the court orders otherwise, offeror entitled to costs incurred:
● (a) Before 11am on second business day after the offer was served, on the ordinary applicable basis; and
● (b) After that time, on an indemnity basis.
26.11 - Transitional (pre 1/9/13 rules apply to old claims)
O26 of former Rules in force immediately pre1/9/13 continues to apply to any OOC served before that date.
26.12 Appeal to Court of Appeal
offer made, and judgment obtained that is equal or better than offer - COA can take into account in making costs orders (non-fixed way)
(1) Where notice of appeal to CoA has been served, a party may serve on another OOC appeal, (2) which can account for x-appeal
(3) (a) Where they do (b) is rejected in reasonable time (c) and obtains judgment no less favourable (equal or better), COA to take that into account in determining orders as to costs.
(4) E.g. may make order costs be taxed other than on the ordinary basis: (a) From commencement of appeal; (b) From the day the offer was served; (c) From any other time the court thinks fit
(5) Unless OOC appeal provides that offer is not without prejudice, no statement of fact that OOC has been made shall be contained in any affidavit and no communication with respect to OOC shall be made to the CoA until the appeal’s been determined save as to costs.
