“As promised I set out below the terms of a Part 36 offer now made to you in this matter in accordance with Rule 36.10 of the Civil Procedure Rules (CPR). Part 36 of the CPR will apply to this offer and is made in relation to the whole of the claim. It is open for acceptance within 21 days from the date of this letter, which is by 4.00pm on19 March 2002 . If after this time you decide you would like to accept the offer, you may only do so if we can agree liability for costs or the court gives permission. …………. However, we are prepared to take a commercial view of this matter and in the interests of saving time and expense and reaching an amicable settlement we are prepared to agree full and final settlement on the following basis: 1. Your claim be discontinued. 2. WPD pay Stokes Personal Pension Fund£27,000 in respect of replanting the trees. 3. WPD pay Stokes Personal Pension Fund an additional goodwill payment in the sum of£8,000 in respect of all and any losses you may have suffered in relation to this dispute (the liability for which is not accepted by WPD as mentioned above). For the avoidance of doubt, the sum of£8,000 is inclusive of interest. 4. Stokes Personal Pension Fund grant WPD the easement detailed in the letter of24 September 2001 , (a copy of which is enclosed for your information). 5. WPD pay your costs (but we understand none have been incurred to date). In the event of non-acceptance of this offer and subsequent issuing of proceedings the adverse cost consequences set out inCPR 36.20 will apply should you fail to obtain a judgment that is more advantageous than the offer at trial.”
“22………It was founded on an estimate provided by a tree expert who was not called as an expert witness in the case but simply as an expert as to fact. The expert made it clear that he provided the estimate to specifications provided by Mr Crocker, the claimant’s principal beneficiary. The expert gave no evidence in the case beyond the scope of the estimate. 23 Thus the estimate and the sum of money it claimed had no expert foundation. Moreover it was not confirmed by other expert evidence from tree experts called by the claimant. In my judgment therefore it was a precarious sum to claim and its lack of solidity is supported by Mr Crocker’s own evidence when he was cross examined about it at trial. His response to the claim at that level being queried was to say that he thought that this element of the claim had been abandoned. In fact however the high claim was not abandoned until closing submissions were made by the claimant and none of its remaining submissions ever sought a judgment sum of anything like that magnitude”
“In the case of the simple money claim, a defendant who wishes to avail himself of the protection afforded by an offer must, in the ordinary way, back his offer with cash by making a payment in and speaking for myself, I should not, as at present advised, be disposed in such a case to treat a Calderbank offer as carrying the same consequences as payment in.”
“3. In the interim report, I did not attach importance to the retention of payments into court as a means of achieving the kind of benefits which I believe will flow from my proposed system of offers. However, the Law Society and others who made representations in response to the interim report, while generally supporting my proposals on offers, argued that a payment into court was a useful way of assuring claimants of the substance of an offer. The fact that the money was actually available made it more likely that the offer would be accepted. Up to a point, I accept this reasoning and therefore do not now recommend the abolition of payments into court. 4. Allowing for the fact that my proposals would enable claimants as well as defendants to make offers, it is of course important that rules of court relating to offers and to payments into court respectively should diverge as little as possible. I therefore recommend, in respect of defendants’ offers, that the making of the offer itself should be the critical step, while the backing of a payment in will be secondary and optional. This means that Cutts v Head[1984] Ch 290 , which prevents the making of a Calderbank offer where a payment into court can be made, will no longer apply under the new rules. When considering the exercise of its discretion as to costs at the end of a case, the court will therefore have to give primary consideration to the terms of the defendant’s offer regardless of whether there was also a payment into court. In practice, it should only be in an unusual case that the absence of a payment in should be taken to undermine the reasonableness of an offer.”
“I agree. Clear though it is that the claimant behaved thoroughly unreasonably from first to last, and tempting though it is therefore to uphold the recorder’s order in full measure, I share Sir Anthony Evans’s view that it was wrong to treat the letter of1 October 1997 for all the world as though it constituted a payment into court. There are to my mind compelling reasons of principle and policy why those prepared to make genuine offers of monetary settlement should do so by way of CPR Pt 36 payments. That way lies clarity and certainty, or at any rate greater clarity and certainty than in the case of written offers. ………… 41. Payments into court have advantages. They at least answer all questions as to (a) genuineness, (b) the offeror’s ability to pay, (c) whether the offer is open or without prejudice, and (d) the terms on which the dispute can be settled. They are clearly to be encouraged, and written offers, although obviously relevant, should not be treated as precise equivalents.”
“In particular the money is then readily available and no question can arise as to whether the offeror can or will pay if the offer is accepted. It should thus be appreciated that offerors who do not make a payment-in do so at their peril in the sense that the Court may not be willing to reflect the offer in its order for costs.”
“all depends on the circumstances.”
“The courts should encourage settlement. One way of doing so is to make effective orders for costs where claimants could have settled for more than they are ultimately held to be entitled. In the instant case there is to my mind no doubt that, if the claimants had accepted the offer in the letter of 27 May, which was expressly written without prejudice save as to costs, the agreement which would then have come into existence would have been honoured by the defendants’ club.”
“Essentially, the trust is bound to be good for the money. This form of offer from an NHS Trust is as sound as a payment in, and, unless there is some factor special about the circumstances of the case, a court should treat such an offer in the same way as a payment in.”
“What then is the effect of a Calderbank offer which subsequently is withdrawn? On the facts of this case – it is not necessary to go further than the facts of this case – it seems to me that, although the offer was no longer available for acceptance, unless the matter had been renegotiated between the parties, the effect of the offer letter remained. Once the letter had been sent, and it was a letter which the learned Judge decided should have been accepted, the District Judge could have taken account of the Calderbank offer. It seems to me that, if the offer in that letter should have been accepted, then Mrs Rosen Peacocke is right in her argument that any subsequent proceedings flowed from the refusal of the offer. There would have been no hearing before Judge Jack in October 1995 had that offer been accepted. For my part, I think it was a misinterpretation of a Calderbank letter of this kind, to treat it as though it was no longer operative. It was not operative in the sense it was open to acceptance, but the effect of it remained.”
“To decide the effect of a Calderbank offer on costs one looks at the date when the offer should have been accepted”
“……the principal error in my judgment, was not to distinguish between the question whether the Calderbank letter was still on the negotiating table and the question whether its terms materially related to the result of the appeal. That it had lapsed, whether by rejection, non acceptance within a reasonable time, or its withdrawal, matters not. It remained material as a fact in the history of litigation. Had it been accepted within a reasonable time after it was made, and the learned Judge correctly found that it should have been because the Plaintiff eventually did less well than they had been offered, then there would have been no need for the appeal at all. An appeal became necessary because, without it, the wrong order would have stood uncorrected.”