CALDERBANK OFFERS/LODGEMENTS/TENDERS IN THE CURRENT ENVIRONMENT

23 April 2021

Each of the above represent offers in different guises normally by a Defendant to settle a Plaintiff’s claim. They offer costs protection to a Defendant and the different formats and circumstances are set out in detail below:-

THE ROLE OF OFFERS IN THE CURRENT ENVIRONMENT

There has been limited access to the Irish Courts in respect of civil disputes since the onset of the Covid pandemic in March 2020. As Courts of each jurisdiction have continued in limited spheres, urgent matters have been granted priority. Most civil disputes do not fall into that category.

Lawyers have engaged in various schemes and mechanisms to achieve settlements, often away from the usual locations such as courthouses. Mediations have been undertaken both in person and remotely. Without the “day of reckoning” sense that a court hearing tends to bring to a case practitioners have required to deploy further devices in an endeavour to force cases to a conclusion where settlement has not been achieved.

Lodgements/Tenders and Calderbank offers appear to be the most useful devices in the current environment.

Whilst each device operates differently, all have the effect of putting pressure on a Plaintiff in respect of legal costs. Plaintiffs can be brave when engaging in settlement discussions though an offer by way of the above with a warning letter from a Plaintiff’s lawyer often results in a forced settlement.

In personal injury actions and with the current spirit of reform (The Personal Injuries Guidelines 2021), there is undoubtedly a downward pressure on damages which is having a chilling effect even where cases are before the Courts and not caught within the parameters of those reforms. With more uncertainty formal offers tend to have a greater effect.

There is furthermore quite a significant time delay with matters being brought on before the Court which assists in the effectiveness of such offers.

This position will remain for some time into the future and often a sum offered may have an enhanced attractiveness currently as opposed funds received at a much later undefined date.

With huge swathes of the economy effectively shut down for the past thirteen months, Plaintiffs may be more vulnerable to such offers from a financial perspective.

Plaintiffs who are not familiar with the Court system may be “spooked” by such offers, particularly when accompanied by warning correspondence from their lawyers outlining the various permeations arising therefrom.

Lodgements, Tenders and Calderbank letters represent different forms of offer and it is worth reviewing each and the various distinctions.

LODGEMENT

The most traditional and oldest device to afford a defendant costs protection is the lodgement. This is set out in the Rules of the Superior Courts and the lower Courts where a defendant would in fact lodge money with the relevant Accountant’s Office of the Court.  The lodgement requires to be made at a specific time in legal proceedings and in the absence of that leave of the Court may be required. A disadvantage of a lodgement are the procedural encumbrances of obtaining funds and lodging same in the relevant office and often missing tight time frames. One advantage of the traditional lodgement was that it did in fact convey to the Plaintiff the “colour of the Defendant’s money”.

The effect of a Plaintiff failing to achieve an award higher than a lodgement is that they would normally only recover costs up to the date of the lodgement. The Defendant thereafter is entitled to recover all subsequent costs.

TENDER

In personal injuries actions, the Rules of the Superior Court were amended by S.I. 328/2000 (Offer of payment in lieu of lodgement). This allowed certain qualified parties to make a tender offer as opposed to the more traditional previous lodgement.

The Tender has the same effect as a lodgement without requiring to go through the process of obtaining funds and physically lodging same into Court. In order to make a lodgement a Defendant must be acting on behalf of a qualified party. A qualified party could be easily identified as a party who is “good” for the funds such as a government body or an insurance indemnifier authorised in the State.  The main advantage of a Tender is that it can be effected immediately without physical funds which may often require to transfer from overseas locations.

Tenders are particularly effective in ensuring that risk is brought to bear on Plaintiffs who may be unwilling to engage meaningfully.

CALDERBANK OFFERS

A Calderbank offer is a letter written normally but not exclusively by a defendant making an offer to resolve litigation.

It should be marked “without prejudice save as to costs” in order to reflect certainty. Any Calderbank offer ought to be clear and such offers have been challenged where there may be uncertainty particularly in respect of the issue of costs. For that reason it ought to be marked “without prejudice save as to costs”.

The name derives from a UK case of Calderbank v Calderbank (1975) and until relatively recently there was some uncertainty with regard to their validity in various different proceedings. This uncertainty was borne out of circumstances where tenders or lodgements could be used but the Legal Services Regulation Act 2015 provides with them greater legitimacy on a statutory footing.

In the recent Supreme Court case of Reamy & Others -v- Interlink Ireland Limited (2018) clarification was provided on the rules of the formulation of lodgements. It is noted that Mr Justice O’Donnell noted that issues concerning tenders and lodgements required consideration by the Superior Court Rules Committees. This is awaited.

Calderbank offers have the advantage that they can be made at any time, both prior to and during legal proceedings.  A Calderbank letter not accepted will be opened in support of an application to fix the Plaintiff with costs and in order to ensure the effectiveness of that application, it ought to be clear and fair as set out above.  There ought to be no ambiguity and the Plaintiff should be afforded a reasonable time to consider the offer. Such an offer may fail if deemed unclear or unfair, Murnaghan -v- Markland Holdings Ltd (2004).

The Court of Appeal in the case of Shannon v O’Sullivan (2016) awarded the costs of the Court of Appeal to the Defendant setting those off against the successful costs which the Plaintiff had won in the High Court. This has given Calderbank correspondence greater validity particularly in appeal situations and the Court of Appeal noted that it would not be just or fair to the Defendants who made such offers, which had they been accepted, would have concluded matters.

This allowed a recovery of costs against a Plaintiff which is often unrealistic in personal injuries actions.

CONCLUSION

All offers of amends by Defendants using the above various tools are most effective in closing down litigation and giving costs protection to Defendants in particular.

Each mechanism must be carefully considered in different forms of civil litigation, depending on the circumstances.

This briefing is a mere guidance document only and is not a substitute for appropriate professional advice in specific matters.

For further advice please contact:-

Mary Byrne, Partner (mbyrne@obl.ie)

Ruth Hereward, Associate Solicitor (rhereward@obl.ie)