A pre-trial Calderbank offer that was reasonably rejected by the party successful at trial cannot ordinarily be relied upon to obtain indemnity costs of a successful appeal; a fresh offer must be made before the appeal. Where a Calderbank offer is made before an appeal hearing with a reasonable time for acceptance (including any proffered extension), and the issues have been fully ventilated in written submissions, the offeree's failure to accept may be unreasonable even where the offer is open for only four business days. The fact of ongoing settlement negotiations is relevant to the exercise of the discretion to award indemnity costs.
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