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In litigation, it is very important to ensure that what you say is actually what you mean to say, otherwise you may achieve an unexpected, possibly unwanted outcome.
This was the case in MEF v St George’s Healthcare NHS Trust  EWHC 1300 (QB).
The Claimant was awarded its costs in a birth injury case, to be assessed if not agreed. A Bill of Costs was prepared and negotiations ensued.
On 27 September 2018, the Defendant made a Calderbank offer for £440,000.00 in full and final settlement of the claim for costs. The offer was re-stated on 30 January 2019 and again on 19 August 2019 following further negotiations between the parties. When restating the offer on 30 January 2019, the Defendant confirmed that it had considered withdrawing the offer but decided not to.
The detailed assessment hearing was listed to commence on 17 September 2019 for 3 days. The Claimant accepted the Defendant’s offer on the 2nd day of the hearing, i.e. 18 September 2019, when it became clear that it would recover less than the offer at assessment.
A new dispute arose between the parties, namely whether the Claimant’s acceptance of the Defendant’s offer was valid. Accordingly, the dispute was listed to be heard before a different Costs Judge, Master Rowley, on 19 September 2019.
Master Rowley found for the Claimant.
The Defendant appealed and the matter went before Mr Justice Morris and Master Haworth.
At appeal, the Court also found for the Claimant.
The first lesson is not to lose sight of the overall goal. Your client wants to recover or pay a certain amount of money, and they want to pay you a certain amount of money to achieve this for them. Those are the two figures that you need to keep an eye on throughout the claim. If you get close to either figure, you need to stop and take stock – you may need to advise on amended settlement parameters or on the commercial viability of proceeding. Litigating for the sake of litigating is dangerous because it could lead to a lot of unfavourable outcomes like criticism from the Court, satellite litigation, disproportionate costs, etc. Determining an important point of principle is a little bit different but a similar analogy applies.
The second lesson is to choose your words wisely. For example, reminding your opponent that a previously rejected Calderbank offer remains capable of acceptance could have the effect of you making the offer afresh. A Calderbank offer is a ‘one-shot’ sort of offer. Once it has been rejected, whether expressly or implicitly by making a counteroffer, it is no longer capable of acceptance. The only way that such an offer would be capable of acceptance after it has been rejected is if it is made afresh. Therefore, when the Defendant stated that its offer was capable of acceptance, it wasn’t extending the validity of the offer, it was making a new offer for the same amount as a previously rejected offer even though it did not use words to that effect.
The third lesson is to avoid using unnecessary words. It is the easiest thing, especially when trying to convince your opponent of the merits of your case, to add in words which you think may add weight to what you are saying. The problem here is that different people interpret the same thing differently so sometimes, less is more. Using unnecessary words could give ammunition to your opponent to use against you. For example, in this case the Claimant successfully argued that by expressly stating that it had considered withdrawing the offer but decided not to, the Defendant did not intend the offer to be time limited. Unless your opponent is a litigant in person, they know that you could withdraw any offer at any time – that is an inherent litigation risk and you don’t need to tell them that you have considered it.
The fourth lesson is not to let your creativity get ahead of you, especially when trying to make the Civil Procedure Rules retrospectively fit your client’s actions. The Rules Committee would certainly have thought deeply about whether it intended a cross-application of Rules when drafting them and it is more likely than not to state it, such as the application of CPR 6 to service of Part 36 offers. If the Rules committee has not confirmed a cross-application of the Rules, you may have a tough time convincing the Court that that is what they intended. The more likely outcome, as was the case here, is that the Court will consider your client’s choices and actions with regard to the Rules which, in turn, may lead to an outcome that does not suit your client.
The fifth lesson is that an offer which is not time-limited can expire after the passage of a reasonable amount of time. What constitutes a reasonable amount of time is likely to be case-specific, but is unlikely to be related to the proximity of a hearing. So, if you have a hearing coming up and you don’t want an offer to be accepted once the hearing begins, you need to make a time limited offer.
So, in summary, when it comes to making offers, you must keep the overall goal in mind, choose your words wisely, avoid using unnecessary words, consider whether or not a time limited offer is best and, if you hit a bump along the way, strike the right balance of creativity in your arguments.
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