Costs – sanctioned offer or payment – offer that plaintiff withdraw statement of claim and there be no order as to costs – offer containing term as to costs not valid sanctioned offer under O. 22
P’s claim was dismissed and D applied to vary the costs order nisi under O. 22 of the Rules of the High Court (Cap.4A, Sub.Leg.) (the “RHC”). D sought indemnity costs and enhanced interest based on a purported sanctioned offer to P proposing that she withdraw her statement of claim and there be no order as to costs of the action (the “Offer”). Under O. 22, if a defendant made a sanctioned offer more than 28 days before the trial, a plaintiff could accept it within 28 days from the date of its making without leave of the court and any agreement on liability for costs. Once accepted, under O. 22 r. 20, the plaintiff was automatically entitled to his costs of the proceedings up to the date of serving the notice of acceptance, unless the court ordered otherwise.
Held, dismissing the application, that:
- An offer containing a term as to costs was not a valid sanctioned offer. Here, the Offer was not a sanctioned offer under O. 22 of the RHC. It effectively precluded the specified costs consequences under O. 22 r. 20. It was made more than 28 days before the commencement of trial and if P had accepted it within time, she would have been completely deprived of her entitlement to costs. While she could have waived her right thereunder, such acceptance could not ex post facto turn the Offer into a sanctioned offer.
- Although the Offer could not be made under O. 22, it should be taken into account in considering the issue of costs under O. 62 r. 5(1)(d) of the RHC. Even treating it as a Calderbank offer, while P’s acceptance of the Offer would have avoided the trial and further costs given D’s pleas and defences, it was not just and appropriate to exercise the Court’s discretion to order indemnity costs and enhanced interest.
