Offers of compromise

Question 1

What are the requirements for a valid offer of compromise?

Answer 1

Made by P and or D (r 26.02(1))

Can cover everything/some things (r 26.02(2)) Must be in writing (r 26.02(3)(a))
Must mention that is it served under O 26 (r 26.02(3)(b))
If it does not do so, it will usually be a Calderbank offer where it states that it is without prejudice except as to costs, and then it can be taken into account in relation to the costs discretion generally.

Can be served at any time before verdict/judgement & a party may serve more than one offer of compromise. (r 26.03(1))

Offer must be open for at least 14 days (r 26.03(3)) Can’t be withdrawn without leave (r 26.03(5)) Can’t be used in court (r 26.04)
No mention that an offer of compromise has been made in any pleading/affidavit (r 26.05(1))

No comment during trial until all q’s of liability and the relief to be
granted have been determined (r 26.05(2) & (3))

Question 2

What is a calderbank offer?

Answer 2

Calderbank offer where it states that it is without prejudice except as to costs, and then it can be taken into account in relation to the costs discretion generally.

Offer does not say that it is served pursuant to O26 SCR

Question 3

How an offer of compromise can be accepted?

Answer 3

By service notice in writing (r 26.03(4))

After acceptance – D shall pay sum to P’s costs incurred up
to that point (r 26.03(7))

W/I 14 days after the acceptance of the offer (r 26.03.1)

No payment made = withdrawal, enforcement, strike out, dismissal and then accordingly judgement (r 26.07)

Question 4

P’s offer of compromise not accepted and P was awarded more

Answer 4

P gets ordinary costs until 11am two business days after the offer and indemnity costs thereafter

Question 5

D’s offer not accepted and P got less

Answer 5

P gets ordinary costs until 11am two business days after the offer, then D gets ordinary costs thereafter.

Question 6

D made offer and not accepted and P loses

Answer 6

D gets ordinary costs until 11am two business days after the offer and indemnity costs thereafter

Question 7

What if O26 does not apply?

Answer 7

If Order 26 does not apply then the costs order will be in the discretion of the judge.