An offer of settlement will not constitute a Calderbank offer unless it conveys the message that non-acceptance will be relied upon as a basis for seeking a special costs order; the heading 'without prejudice save as to costs' alone is insufficient if the offer does not otherwise indicate an intention to rely on it for costs purposes. Where an offer is made at first instance, the correct comparator for determining whether the offer bettered the result is the judgment at first instance, not the result on appeal. An offer inclusive of costs must be assessed against the total of the judgment sum, pre-judgment interest, and costs to determine whether it bettered the result.
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