Where a proceeding involves a claim and counterclaim that are both dismissed, the practical effect of the usual costs order (costs follow the event, counterclaim treated as separate event) is that the successful party on the counterclaim recovers only incremental costs beyond the costs of the claim; however, this is a description of the usual order's practical effect, not a binding rule, and the court retains discretion to make different orders in appropriate circumstances. Settlement offers in defamation proceedings that demand an unqualified apology and public acknowledgment of the offeror's claim amount to demands for capitulation and do not constitute genuine attempts at compromise for the purposes of s 40 of the Defamation Act 2005 or the overarching obligations under the Civil Procedure Act 2010. Settlement offers made at mediation may be considered under s 40 of the Defamation Act where both parties have agreed in writing to waive without prejudice privilege under s 24A of the Supreme Court Act 1986.
The full text is available to signed-in members, including the 6 later cases that cite this judgment.