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be reasonable at all costs

12 July 2012

Whilst a successful defence entitles defendants to recover costs on a standard basis the courts do have discretion to consider all the circumstances including the conduct of the parties.

Platform Funding Ltd v Anderson & Associates Ltd highlights the importance in litigation cases of not only making the right offer early but also willing to explore an amicable compromise even when there is a reasonably good prospect of a successful defence.

In Platform the court awarded indemnity costs based on the premise of a “walk away’ offer in the form of Calderbank letter made within 2 months of the litigation commencing. A Calderbank letter is a letter which is marked “without prejudice save as to costs” and is aimed at offering to settle a claim for a specified sum. The court also considered the clear intention of the defendant during the litigation to seek a compromise and the unwillingness of the claimant to do so without there first being a monetary offer on the table.

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