SCR o 26 - Offers of compromise / offers to compromise on appeal Flashcards
Costs definitions
- SOLICITOR/CLIENT costs are costs billed by a solicitor or law practice to a client
- PARTY/PARTY costs are typically less than and cannot exceed solicitor/client costs (typically some solicitor/client costs that are not recoverable by a winning client. The amount is either agreed between the parties or assessed by a Supreme Court Costs Assessor).
*INDEMNITY COSTS ‘indemnify’ a party for ALL their costs (including costs that would usually fall outside the scope of party/party costs).
As a rule, COSTS FOLLOW THE EVENT. A plaintiff who succeeds at trial will normally be awarded the costs of the proceeding.
The STANDARD BASIS of taxation of costs is PARTY/PARTY.
26.02 Offers of compromise generally
A party may, in respect of any claim in a proceeding, serve on another party an offer of compromise on terms.
An offer of compromise must:
- be in writing and prepared in accordance with the Rules; and
- state that it is served in accordance with O26.
COSTS: an offer of compromise must state either:
- that the offer is INCLUSIVE of costs; OR
- that costs are to be paid or received, as the case may be, IN ADDITION to the offer.
26.03 Time for making, accepting etc offer
An offer of compromise may be served at ANY TIME BEFORE VERDICT OR JUDGMENT in respect of the claim to which it relates. A party may serve more than one offer of compromise.
An offer of compromise may be expressed to be limited as to the TIME THE OFFER IS OPEN after service, but the time expressed shall NOT LESS THAN 14 DAYS after such service.
A party on whom an offer of compromise is served may accept the offer by serving NOTICE OF ACCEPTANCE in writing on the party who made the offer BEFORE:
- the expiration of the time specified or, if no time is specified, the expiration of 14 days after service of the offer; or
- verdict or judgment in respect of the claim to which the offer relates—
whichever is sooner.
An offer of compromise shall not be withdrawn during the time it is open to be accepted, unless the Court otherwise orders.
Even if the party served with an offer makes a counter offer, the time specified in the original OoC remains open.
26.04 Effect of offer
An offer of compromise made in accordance with this Part shall be taken to be an offer of compromise made WITHOUT PREJUDICE, unless the offer otherwise provides.
26.05 Disclosure of offer to Court
No statement of the fact that an OoC has been made shall be contained in any pleading etc.
Where an offer of compromise has NOT been accepted, then, the Court should not be notified on the trial of the proceeding until AFTER all questions of liability and the relief to be granted have been determined at trial.
NB: the above rules do not apply where an offer of compromise explicitly states it is NOT made without prejudice to proceedings.
26.07 Withdrawal of acceptance
A party who has accepted an offer for payment may WITHDRAW the acceptance IF:
- the sum of money is NOT PAID—
o within the time specified; or
o if no time is specified by the offer, within 28 days after acceptance; AND
- the Court gives LEAVE (on the application of the party seeking to withdraw).
A party seeking leave to withdraw acceptance may also seek orders to restore the parties as nearly as practicable to their position at the time of acceptance (and any other orders).
26.08 Costs consequences of failure to accept
Offer by P → not accepted by D → judgment for P NO LESS FAVOURABLE than offer → P entitled to STANDARD COSTS BEFORE offer, INDEMNITY COSTS AFTER offer
Offer by D → not accepted by P → judgment for P NOT MORE FAVOURABLE than offer → STANDARD COSTS FOR P before offer, STANDARD COSTS FOR D after offer
Offer by D → not accepted by P → judgment for D, or dismissal of P’s claim → STANDARD COSTS for D before offer, INDEMNITY COSTS for D after offer
26.08.1 Pre-litigation offers
No fixed consequences of a rejected pre-lit offer to settle, but Court will take into account in determining costs orders.
Point of section is to encourage parties to settle themselves before commencing proceedings.
