Costs consequences of failure to accept
26.08 Costs consequences of failure to accept
This Rule applies to an offer of compromise which has not been accepted at the time of an order on the claim to which the offer relates.
If an offer of compromise is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff is entitled—
if the claim of the plaintiff is for damages for or arising out of death or bodily injury—to an order against the defendant for costs in respect of the claim fixed on the appropriate scale in Appendix A, as if the costs prescribed by that scale were increased by 25%;
in the case of any other claim of the plaintiff—to an order against the defendant for the plaintiff's costs in respect of the claim before 11.00 a.m. on the second business day after the offer was served, fixed on the appropriate scale in Appendix A and for the plaintiff's costs thereafter fixed on the appropriate scale in Appendix A, as if the costs prescribed by that scale were increased by 25%.
If an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains an order on the claim to which the offer relates not more favourable than the terms of the offer, then, unless the Court otherwise orders—
the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim before 11.00 a.m. on the second business day after the offer was served, fixed on the appropriate scale in Appendix A; and
the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim thereafter fixed on the appropriate scale in Appendix A, as if the costs prescribed by that scale were increased by 25%.
If an offer of compromise is made by a defendant and the plaintiff unreasonably fails to accept the offer and the claim to which the offer relates is dismissed or an order on the claim is made in favour of the defendant, then unless the Court otherwise orders—
the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim until 11.00 a.m. on the second business day after the offer was served, on the appropriate scale in Appendix A; and
the defendant is entitled to an order against the plaintiff in respect of the defendant's costs after the time referred to in paragraph (a) on the appropriate scale in Appendix A, as if the costs prescribed by that scale were increased by 25%.
If a plaintiff obtains an order of the Court for the recovery of a debt or damages and—
the order includes an amount for interest or damages in the nature of interest; or
by or under any Act the Court awards the plaintiff interest or damages in the nature of interest—
for the purpose of determining the consequences as to costs referred to in paragraphs (2) and (3) the Court must disregard so much of the amount recovered by or awarded to the plaintiff for interest or damages in the nature of interest as relates to the period after the day the offer of compromise was served.
For the purpose only of paragraph (5), the Court may be informed of the fact that the offer of compromise was served, and of the date of service, but must not be informed of its terms.
Paragraphs (2), (3) and (4) do not apply unless the Court is satisfied by the party serving the offer of compromise that that party was at all material times willing and able to carry out that party's part of what was proposed in the offer.
If the plaintiff obtains an order for the recovery of a debt or damages, and the amount of the debt or the damages was not in dispute, but only the question of liability, paragraph (2) does not apply unless the Court is satisfied that the plaintiff's offer was of a genuine compromise.
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