Offer Issues

Table of Contents

Lodgements and Settlements

The vast majority of cases commenced in the court system are settled without resort to trial. Many cases are settled without commencement of proceedings at all. The law encourages the settlements of cases.

The party’s legal advisors should be in a position to assess the relative merits of the case. In a settlement, each party is likely to do less well he would ideally want, but better than he would do if he lost the claim following a trial.

The rules of court allow for an offer made by a defendant. If an offer is made and the plaintiff fails to be awarded more than this amount in the ultimate trial, he is usually liable for both parties’ costs from the date of the lodgement. In this case, he is said to fail to beat the lodgement.

The rules of court provide formal procedures for payment of money into court on notice to the plaintiff. There are some variations in the rules relative to the type of claim concerned.

Generally, the fact of making the offer is not disclosed to the judge during the trial. In a jury trial, the lodgement is not disclosed to it. It does not constitute an admission of liability. However, the court may exceptionally enquire for good and sufficient reason as to whether a lodgement has been made, and if so, for what amount.

Certain public bodies with sovereign or quasi-sovereign status are entitled to make offers of payment in lieu of actual payment. The same procedures apply lied as in respect of lodgement.

A plaintiff may himself make a lodgement, in respect for counterclaim on the same broad same terms as the defendant, in respect of the principal claim.

Personal Injury etc. Cases

In most personal injury cases or cases for wrongful death, a defendant may make one lodgement without the consent of the court and upon giving notice to the plaintiff. The money must actually be paid into court either at the time the defence is delivered or within four months from the notice of trial. Accordingly, if a lodgement is not then made when the defence is delivered, the defendant is not entitled to do so until a notice of trial is served, in which case he has four more months to make the lodgement.

Lodgements made outside this period or an increase in the lodgement may be made with the consent of the court. The court may apply conditions.

If the claimant serves replies or additional particulars after the time limit for a lodgement, the defendant may without leave or consent of court make payment within 21 days of the date of same on giving notice to the defendant.

If more than 18 months pass since the notice of trial, the defendant may without consent make payment into court within 21 days giving notice to the plaintiff. The payment if not accepted, is not to take effect for two months and the dates that it is made or increased.

Other Cases (including Debt)

In other types of cases, including debt collection proceedings, the defendant may after the appearance and before the action is set down, or any time with the consent of the court, give notice to the plaintiff and pay into court a sum in satisfaction of the claim.

This may be increased once without the consent of the court and on giving notice to the plaintiff. The additional amount must itself be paid into court. The notice must be given and payment made at least three months prior to the date the action was first listed for hearing.

In the above kind of case, (non- personal injury and like cases). The judge is not to be informed of the amount paid into court unless all issues of liability the amount of the damages have been decided. Similarly, no communications may be made to the jury in this respect.

A lodgement may specify whether or not liability is admitted. The defendant may make a lodgement without admitting liability

Where Court Consent Required

Lodgements can be made at any stage with the court’s consent. This may follow negotiations, which should take place without prejudice.

Late lodgements may be made in respect to personal injuries and fatal injury case with the consent of the courts. The application may be made before a retrial and after an appeal has been made

The courts may impose conditions on late lodgements and increased lodgements. Additional cost incurred since the original the lodgement or since when the lodgement could’ve been made are generally payable as a condition of consent.

Acceptance of Lodgement

The plaintiff may accept the lodgements within 14 days of notice. He may accept it later by agreement. If must be accepted in full or not at all. Once the lodgement is accepted, the plaintiff is entitled to payment of costs in the proceedings and the action will be stayed. The plaintiff may tax his costs to the date of acceptance of the note.

Late acceptance of lodgement would acquire court consent. Consent is likely to be granted. Next, the defendant has been prejudiced. The plaintiff will be entitled to his cost so later the days of the lodgement.

If the plaintiff does not obtain an award in excess of the amount of the lodgement, then unless the judge, otherwise orders for special cause, the amount paid into court may be paid to the plaintiff in settlement of his claim and the excess is to be repaid to the defendants. The plaintiff is entitled to his cost up to the date of lodgement and on issues if any, on, which he has succeeded. The defendant is entitled to the costs from the time the payment was made, and on issues, on which the defendant has succeeded.

Settlements and compromises relating to persons under 18 require court approval. Therefore, no acceptance can take place without an application to court and approval of the settlement.

If the lodgement is accepted, notice is to be given to all defendants and further proceedings are stayed The money will be paid out with an order to cover the issue of costs in the proceedings.

Multiple Parties

Where there are multiple defendants, one or a more of them may give notice of lodgement. Notice is to be given to the plaintiff and the other defendant.

Payments sent to court may be in respect to multiple claims.The defendant / cases and apportionment should be specified in the notice. The court may vary them on the application.

Where there are multiple defendants, any of them may make an offer of an amount of the total damage, which that defendant may be liable to the plaintiff. A defendant or one or more defendants may serve a notice, on another defendant prior to the trial of the issue of the apportionment of liability as between themselves,pay a specified percentage of the total,

Where the tender is accepted between the defendants and judgement is entered against them both, the person making the offer is liable to account to the other for the payment of the specified percentage of the total arising under the Civil Liability Act apportionment.

Where an order is made against both parties and the offer has not been accepted between the defendant and the amount of total damages awarded to the plaintiff, which the offerer is liable to pay does not exceed the amount tendered then unless the judge, otherwise, determines for exceptional reasons on the offeree is to the offering defendants, in respect of all costs after the date of the tender.

In a claim for a debt, the defendant may make a tender before the claim of the amount dues, the sum must be paid into court with the defence or affidavit. If the defendant succeeds and the defence as having tendered, proceedings should be dismissed with no or further cost in favour of the defendant. The tender must be of the whole amount of the debt

Offer

An offer may be made without prejudice as to costs. This is a so-called Calderbank Offer. Te offer must be clear a and deal with the issue of cost.

The offer is made without prejudice, so is inadmissible in relation to the question of liability. However, it can be brought to the attention of the court solely in relation to the issue of costs.

The procedure is available in respect of proceedings where the relief is other than for or in addition to damages or debt collection. It is not available where a lodgement could have been made.

The Calderbank Offer may be taken into account, but it will not be a defence. If the offer is made too late, it is unlikely to have an effect in relation to costs.

Costs Rules

The legislation and costs rules now provide that the courts and costs adjudicator are to have regard to the Offer. A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—

conduct before and during the proceedings,
whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,
the manner in which the parties conducted all or any part of their cases,
whether a successful party exaggerated his or her claim,
whether a party made a payment into court and the date of that payment,
whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and
where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than

The discretion in relation to costs remains. If the person to whom the offer is made has failed to achieve a better offer than that made, he may be denied all or more likely part of the costs of the proceedings.

Tender Before Claim

In a claim for a debt, the defendant may make a tender before the claim is commenced of the amount due. The tender must be of the whole amount of the debt

The sum must be paid into court with the defence or equivalent pleading. If the defendant succeeds in the defence of having tendered, proceedings should be dismissed with an order for costs in favour of the defendant.

After proceedings are initiated, the court will specify that payment to the court is required with the defence or affidavit in defence of the claim. This must be set out in the affidavit or defence itself.

Costs Consequences re Tender and Offer

The court, in considering the awarding of the costs of any action (other than an action in respect of a claim or counterclaim concerning which a lodgment or tender offer in lieu of lodgment may be made ) or any application in such an action, may, where it considers it just, have regard to the terms of any offer in writing sent by any party to any other party or parties offering to satisfy the whole or part of that other party’s (or those other parties’) claim, counterclaim or application.

The High Court, in considering the awarding of the costs of any appeal from the Circuit Court, may, where it considers it just, have regard to the terms of any offer in writing sent by any party to any other party to the appeal offering to satisfy the whole or part of that other party’s (or those other parties’) claim or counterclaim the subject of the appeal.An “offer in writing” includes any offer in writing made without prejudice save as to the issue of costs.