Offer without payment-in

Trustees of Stokes Pension Fund v Western Power Distribution (South West) plc [2005] EWCA Civ 854; [2005] All ER (D) 107 (Jul) CA; TLR 28 July

The Court of Appeal regretted that although the CPR provide that the court can order that an offer is to have the same costs consequences as a Part 36 payment into court, it gives no guidance as to how the discretion to do so should be exercised. The court held that an offer by a clearly solvent defendant to settle a money claim should usually be treated as having the same effect as a payment into court if the offer was expressed in clear terms, was open for acceptance for at least 21 days and otherwise accorded with the substance of a Calderbank offer, was a genuine offer and if the defendant was good for the money when the offer was made. To the extent that any of those conditions was not satisfied, the offer should be given less weight than a payment into court for the purposes of a decision as to the incidence of costs. Where none of the conditions was satisfied it was likely that the court would hold that the offer afforded the defendant no costs protection at all.