An offer you can’t refuse?

Hindsight is a wonderful thing. Recent judgments have drawn attention to the “failures” of parties (and their advisers) to curb costs and reach settlement. Why did X embark on a doomed case at vast and irrecoverable expense? Why did Y leave disclosure until the last minute thereby causing costs to rocket? Why did Z not accept an offer to settle which it could never realistically hope to beat? Of course in the heat of battle, matters are rarely clear cut.

However two recent cases provide guidance as to the court’s developing approach to two potentially problematic areas which crop up time and again: Without Prejudice Save As To Costs Offers (Calderbank Offers) and Part 36 Offers . The Court of Appeal decision (concerning Calderbank offers) is perhaps clearer than the more nuanced (and very fact specific) judgment of the Commercial Court (concerning an “unsuccessful” defendant’s Pt 36 offer).

Coward v Phaestos

The first case, Coward