where appellants were partially successful on appeal
Quick Take
1A settlement offer made after an appeal has progressed significantly — with submissions on both sides already prepared — that does not address the offeree's costs incurred up to the date of the offer may not render non-acceptance unreasonable, even where the ultimate outcome is substantially the same as the offer.
2The adequacy of the period for which a settlement offer is left open must be assessed by reference to whether it was sufficient for the offeree's advisors to properly consider and advise on the offer, having regard to their other commitments.
3Where an appellant is partially successful on appeal but a settlement offer could have avoided further costs, an appropriate balance may be struck by making the appellants' costs of the appeal their costs in the proceedings below rather than awarding costs against either party.
