CIVIL — COSTS — Calderbank offers — Whether ‘walk away’ offer to have same effect as Calderbank offer — Whether respondent had enough information to reasonably be expected to accept any of applicant’s offers
Quick Take
1A 'walk away' Calderbank offer or offer of compromise will not attract indemnity costs consequences where the offeror's own late or incomplete compliance with disclosure obligations meant the offeree could not make an informed assessment of the merits at the time the offer was open for acceptance.
2A party whose material non-disclosure or belated production of documents was critical to the ultimate outcome of the case is not entitled to rely on earlier offers of compromise to obtain a special costs order, even where the final judgment was less favourable to the offeree than the offers made.
3While 'walk away' offers may involve a genuine element of compromise — the forgoing of a costs claim — the stage of proceedings and the state of the parties' knowledge at the time of the offer remain central to whether rejection was unreasonable.
