Sometimes you just have to put your hands up and realise that to defend a case will be futile and that to do so will only drag out the legal process and incur more legal costs. Section 169.1.f of the Legal Services Regulation Act 2015 is designed to assist defendants that wish to settle cases in circumstances where the plaintiff refuses to engage. When deciding on costs the court must now have regard to whether an offer to settle the proceedings has been and the terms of the that offer. These offer letters by the defendant are known as Calderbank letters and should be carefully drafted.
Your Calderbank letter, addressed to the plaintiff, will make an open offer of say €100,000 to settle a case, allow a reasonable period for the defendant to consider the offer, say twenty days, and point out that in the event that they offer is not accepted and the court awards say €99,000 to the plaintiff then the defendant will produce the offer letter to the court to support an application that the plaintiff should pay the defendants costs on the basis that the case should have settled when the €100,000 was offered. This means that the plaintiff may have to pay the defendants costs from the date the offer was made ASWELL as their own costs from the date the offer was made.
A hefty Calderbank offer will exert pressure on the plaintiff to accept the sum being offered, the greater the offer and the sooner it’s made the more likely the plaintiff will accept the offer as not could mean they must pay back a very substantial part of the award in costs. Application can also be made to the court that only part of the settlement be paid over pending an assessment of the costs. If you are interested in the latest case law in this area see the decision of Justice Murray in HIGGINS V IRISH AVITATION AUTHORITY [2020] IECA 277
We have experience in measuring offers and crafting Calderbank letters so let us help you close down some of those outstanding cases.