UCPR Rules 8 (Offers to Settle) (358-365)

Question 1

Rule 358

Answer 1

358
Acceptance of offer

(1)An offer may be accepted only by serving a written notice of acceptance on the party making the offer.

(2)An offer does not lapse on the making of a counteroffer.

(3)If an offeree rejects an offer or makes a counteroffer that is not accepted under this part, the offeree may subsequently accept the original offer during the period it is open for acceptance.

(4)If an offer is accepted, the court may incorporate any of its conditions into an order.

(5)If an offer is accepted that expressly or impliedly includes an offer to pay assessed costs, then on the filing of a notice of acceptance in the approved form—
(a)an order of the court is taken to have been made for the payment of costs in accordance with the offer; and
(b)the costs may, if required, be assessed under these rules.

Question 2

Rule 359

Answer 2

359
Person under a legal incapacity

(1)A party who is a person under a legal incapacity may make or accept an offer under this part.

(2)However, the making or the acceptance of an offer is not binding on the party unless it is approved by the court under rule 98 or the public trustee acting under the Public Trustee Act 1978, section 59.

Question 3

Rule 360

Answer 3

360
Costs if offer by plaintiff

(1)If—
(a)the plaintiff makes an offer that is not accepted by the defendant and the plaintiff obtains an order no less favourable than the offer; and
(b)the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;
the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

(2)If the plaintiff makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.

Question 4

Rule 361

Answer 4

361
Costs if offer by defendant

(1)This rule applies if—
(a)the defendant makes an offer that is not accepted by the plaintiff and the plaintiff does not obtain an order that is more favourable to the plaintiff than the offer; and
(b)the court is satisfied that the defendant was at all material times willing and able to carry out what was proposed in the offer.

(2)Unless a party shows another order for costs is appropriate in the circumstances, the court must—
(a)order the defendant to pay the plaintiff’s costs, calculated on the standard basis, up to and including the day of service of the offer; and
(b)order the plaintiff to pay the defendant’s costs, calculated on the standard basis, after the day of service of the offer.

(3)However, if the defendant’s offer is served on the first day or a later day of the trial or hearing of the proceeding then, unless the court otherwise orders—
(a)the plaintiff is entitled to costs on the standard basis to the opening of the court on the next day of the trial; and
(b)the defendant is entitled to the defendant’s costs incurred after the opening of the court on that day on the indemnity basis.

(4)If the defendant makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.

Question 5

Rule 362

Answer 5

362
Interest after service of offer

(1)This rule applies if the court gives judgment for the plaintiff for the recovery of a debt or damages and—
(a)the judgment includes interest or damages in the nature of interest; or
(b)under an Act the court awards the plaintiff interest or damages in the nature of interest.

(2)For giving judgment for costs under rule 360 or 361, the court must disregard the interest or damages in the nature of interest relating to the period after the day of service of the offer.

Question 6

Rule 362A

Answer 6

362A
Multiple beneficiaries

(1)If a wrongful death proceeding is brought for the benefit of 2 or more persons (the beneficiaries), a party to the proceeding may make an offer to settle 1 or more claims in the proceeding by payment of 1 amount to all the beneficiaries without stating how the amount is to be apportioned among the beneficiaries.

(2)If the offer is accepted, none of the amount is to be paid or payable to the plaintiff until the way in which the amount is to be apportioned among the beneficiaries is decided by—
(a)order of the court; or
(b)an agreement that is binding on each of the beneficiaries.

(3)An agreement about apportionment is not binding on a beneficiary who is a person under a legal incapacity unless it is approved by the court under rule 98 or the public trustee acting under the Public Trustee Act 1978, section 59.

Question 7

Rule 363

Answer 7

363
Multiple defendants

(1)If there are 2 or more defendants, the plaintiff may make an offer to settle with any defendant, and any defendant may offer to settle with the plaintiff.

(2)However, if defendants are alleged to be jointly or jointly and severally liable to the plaintiff and rights of contribution or indemnity may exist between the defendants, this rule applies to the offer only if—
(a)for an offer made by the plaintiff—the offer is made to all of the defendants and is an offer to settle the claim against all the defendants; or
(b)for an offer made to the plaintiff—
(i)the offer is an offer to settle the plaintiff’s claim against all the defendants; and
(ii)if the offer is made by 2 or more defendants, by the conditions of the offer the defendants who make the offer are jointly or jointly and severally liable to the plaintiff for the whole of the amount of the offer.

Question 8

Rule 364

Answer 8

364
Offer to contribute

(1)This rule applies if a defendant makes a claim (a contribution claim) to recover contribution or indemnity against a person, whether a defendant to the proceeding or not, in relation to a claim for a debt or damages made by the plaintiff in the proceeding.

(2)A party to the contribution claim may serve on another party to the contribution claim an offer, subject to any conditions specified in the offer—
(a)to settle the contribution claim; or
(b)to contribute towards an offer to settle the claim made by the plaintiff.

(3)The court may take account of an offer under subrule (2) in deciding whether it should order that the party on whom the offer was served should pay all or part of—
(a)the costs of the party who made the offer; and
(b)any costs the party is liable to pay to the plaintiff.

(4)Rules 356 and 357 apply, with any changes necessary, to an offer to contribute as if it were an offer.

Question 9

Rule 365

Answer 9

365
Failure to comply with offer

If a party does not comply with an accepted offer, the other party may elect to—
(a)apply to the court for an order on the conditions of the offer and the court may make the order; or
(b)continue with the proceeding as if an offer had not been accepted.