Where proceedings were managed for a number of years by way of caseflow reviews. 10 days before the trial’s commencement the plaintiff applied to discontinue the proceedings. The plaintiff offered to pay the defendant’s costs of and incidental to the proceeding on the standard basis and offered an undertaking to not bring any fresh claim against the defendant arising out of the subject matter of the proceeding, in return for the defendant’s consent to the discontinuance. The defendant rejected that offer and contended that its costs should be paid by the plaintiff on the indemnity basis but did not make any formal, informal or Calderbank offer to settle the proceedings prior to the application for leave to discontinue.
The Court held that the plaintiff had made “…a reasonable offer which should have been accepted by the defendant” and ordered that the defendant’s costs of and incidental to the proceedings be assessed on the standard basis and limited to those incurred by the defendant up to and including the date of the review hearing for the application to discontinue proceedings.
Rob Anderson KC (leading S Forrest) appeared for the plaintiff, instructed by Rostron Carlye Rojas.
The judgment is published here.
