COSTS — plaintiff successful as against two defendants — various offers of compromise — whether indemnity costs should be ordered — whether [name withheld] order should be made to the effect that the first defendant bear the liability for any costs awarded against the plaintiff in favour of the second defendant following non-acceptance by plaintiff of settlement offer from second defendant
Quick Take
1Where a plaintiff succeeds against multiple defendants and one has limited proportionate liability under Pt 4 of the Civil Liability Act 2002 (NSW), the plaintiff's costs may fairly be apportioned between defendants by reference to their proportionate responsibility. A defendant should not obtain the benefit of a co-defendant's offer of compromise that it did not itself make.
2An offer of compromise under UCPR r 20.26 may be framed as a percentage of liability rather than a monetary sum. A plaintiff who does no better than such an offer bears the onus of showing that rejecting it was reasonable. Concern that the claim might fail against a different defendant who was intransigent about settlement does not inform the plaintiff's prospects against the offeror, and on the facts did not justify rejection.
3A [name withheld] order requires 'something more' than an unsuccessful defendant's mere denial of liability. Here, a defendant's refusal to accept any liability, which prevented a joint settlement but did not preclude the plaintiff settling separately with the co-defendant, was not sufficient.
