Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered Regulationssubstitute
Part 2.10 Offers of compromise
1000 Application—pt 2.10
This part is subject to the Civil Law (Wrongs) Act 2002
, chapter 14 (Limitations on legal costs) and the Road Transport (Third-Party Insurance) Act 2008
, part 4.8 (Mandatory final offers) and part 4.9 (Court proceedings).
1001 Definitions—pt 2.10
In this part:
"judgment in favour of the defendant" includes a dismissal of an originating application or an originating claim.
"offer" means an offer of compromise under rule 1002.
"period of acceptance", for an offer, means the period when the offer is open for acceptance.
1002 Making offer
(1) A party may, by written notice, make an offer to another party to compromise any claim in proceedings, either in whole or in part, on stated terms.
(2) An offer under this rule must—
(a) identify—
(i) the claim or part of the claim to which it relates; and
(ii) the proposed orders for disposal of the claim or part of the claim including, if a monetary judgment is proposed, the amount of the judgment; and
(b) if the offer relates only to part of the proceedings, include a statement—
(i) for an offer by the plaintiff—stating whether the remainder of the proceedings will be abandoned or pursued; or
(ii) for an offer by a defendant—stating whether the remainder of the proceedings will be defended or conceded; and
(c) not include an amount for costs or state that it is inclusive of costs; and
(d) state that the offer has been made in accordance with this part; and
(e) state the period of acceptance.
(3) An offer under this rule may propose—
(a) a judgment in favour of the defendant—
(i) with no order as to costs; or
(ii) despite subrule (2) (c), with an order that the defendant will pay to the plaintiff a stated amount for the plaintiff's costs; or
(b) that the costs as agreed or assessed up to the time of the offer will be paid by the person making the offer; or
(c) that the costs as agreed or assessed on a party and party basis or indemnity basis will be paid out of a stated estate or fund identified in the offer.
(4) If the offeror makes an offer before the offeree is given particulars of the offeror's claim, and documents available to the offeror necessary for the offeree to properly consider the offer, the offeree may, within 14 days after receiving the offer give notice to the offeror that—
(a) the offeree is unable to assess the reasonableness of the offer because of the lack of particulars or documents; and
(b) if rule 1010 applies—the offeree will seek an order under rule 1010 (2).
(5) The end of a period of acceptance for an offer—
(a) for an offer made 2 months or more before the date set down for the start of the trial—must be not less than 28 days after the day the offer is made; and
(b) in any other case—must be after a period that is reasonable in the circumstances.
(6) Unless the notice of offer otherwise provides, an offer providing for the payment of money or doing of an act is taken to provide for the payment or doing of the act within 28 days after the offer is accepted.
(7) Unless the notice of offer otherwise provides, an offer is made without prejudice.
(8) A party may make more than 1 offer in relation to the same claim.
(9) Unless the court orders otherwise, an offer may not be withdrawn during the period of acceptance for the offer.
(10) A notice of offer purporting to exclude, modify or restrict rule 1010 or rule 1011 is invalid.
1003 Acceptance of offer
(1) A party may accept an offer by serving written notice on the offeror at any time during the period of acceptance for the offer.
(2) The offer may be accepted even if a further offer is made during the period of acceptance for the offer.
(3) If an offer is accepted under this rule, any party to the offer may apply for judgment to be entered accordingly.
1004 Withdrawal of acceptance
(1) A party who accepts an offer may, by written notice served on the offeror, withdraw the acceptance if—
(a) the offer provides for the doing of an act or for payment of money, and the act is not done or the money is not paid to the offeree or into court within 28 days after acceptance of the offer or within another time provided for in the offer; or
(b) the court grants the party leave to withdraw the acceptance.
(2) If the party withdraws acceptance of the offer—
(a) except where paragraph (b) provides otherwise, all steps in the proceedings that were taken as a consequence of the acceptance no longer have effect; and
(b) the court may, after the offer is withdrawn or when granting leave to withdraw the offer, give directions that—
(i) restore the parties as nearly as possible to their positions at the time of acceptance; and
(ii) give effect to any steps in the proceedings taken as a consequence of the acceptance; and
(iii) provide for the further conduct of the proceedings.
1005 Failure to comply with accepted offer
(1) If the plaintiff, as a party to an accepted offer, fails to comply with the terms of the offer, the defendant is entitled—
(a) to a judgment or order that is appropriate to give effect to the terms of the accepted offer; or
(b) to an order that the proceedings be dismissed, and to judgment accordingly, as the defendant elects, unless the court orders otherwise.
(2) If the defendant, as a party to an accepted offer, fails to comply with the terms of the offer, the plaintiff is entitled—
(a) to a judgment or order that is appropriate to give effect to the terms of the accepted offer; or
(b) to an order that the defence be struck out, and to judgment accordingly, as the plaintiff elects, unless the court orders otherwise.
(3) If a party to an accepted offer fails to comply with the terms of the offer, and a defendant in the proceedings has made a counterclaim that is not the subject of the accepted offer, the court—
(a) may make an order or give a judgment under this rule; and
(b) may make an order as to the further conduct of proceedings on the counterclaim it considers appropriate.
1006 Disclosure of offer to court
(1) No statement that an offer has been made may be included in any pleading or affidavit.
(2) If an offer is not accepted, no communication in relation to the offer may be disclosed to the court at trial.
(3) Despite subrule (2), an offer may be disclosed to the court—
(a) if a notice of offer provides that the offer is not made without prejudice; or
(b) to the extent necessary to enable the offer to be taken into account for determining an amount of interest up to judgment; or
(c) after all questions of liability and relief have been determined, to the extent necessary to determine questions as to costs.
1007 Compromises in certain Supreme Court proceedings
(1) This rule applies to proceedings in the Supreme Court concerning—
(a) the administration of a deceased person's estate; or
(b) property the subject of a trust; or
(c) the construction of an Act, instrument or other document, involving any matter in which 1 or more people have the same interest or liability.
(2) If a compromise affects a person who is not a party but who has the same interest or liability, and the court is satisfied that the compromise will benefit the person, the court may approve a compromise that—
(a) 1 party has agreed to; or
(b) the court has sanctioned on behalf of the party.
(3) A compromise under subrule (2) binds the person who is not a party unless the court's approval of the compromise has been obtained by fraud or nondisclosure of material facts.
1008 Offer to contribute
(1) An offer in a proceeding must not be brought to the attention of the court until all questions of liability or amount of debt or damages have been decided, if in the proceeding—
(a) one party ( the first party ) stands to be held liable to another party ( the second party ) to contribute towards any debt or damages which may be recovered against the second party in the proceeding; and
(b) the first party, at any time after filing a notice of intention to respond or defence, makes an offer to the second party to contribute to the debt or damages; and
(c) the offer is made without prejudice to the first party's defence.
(2) In this rule:
"debt or damages" includes any interest up to judgment claimed on any debt or damages.
1009 Offer accepted and no provision for costs
(1) This rule applies if an offer—
(a) is accepted in relation to a claim; and
(b) does not make provision for costs in relation to the claim.
(2) If the offer proposed a judgment in favour of the plaintiff in relation to the claim, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in relation to the claim, assessed on a party and party basis up to the time when the offer was made.
(3) If the offer proposed a judgment in favour of the defendant in relation to the claim (including a dismissal of an originating application or originating claim), the defendant is entitled to an order against the plaintiff for the defendant's costs in relation to the claim, assessed on a party and party basis up to the time when the offer was made.
1010 Offer not accepted and judgment no less favourable to plaintiff
(1) This rule applies if an offer is made by the plaintiff in relation to a claim, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer.
(2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in relation to the claim—
(a) if the claim is a personal injury claim—assessed on a solicitor and client basis for the whole of the proceeding; or
(b) in any other case—
(i) assessed on a party and party basis up to the time when the costs are to be assessed on a solicitor and client basis under subparagraph (ii); and
(ii) assessed on a solicitor and client basis—
(A) if the offer was made before the first day of the trial—from the day the period for acceptance of the offer ends; and
(B) if the offer was made on or after the first day of the trial—at and from 11 am on the day after the offer was made.
1011 Offer not accepted and judgment no more favourable to plaintiff
(1) This rule applies if an offer is made by the defendant in relation to a claim, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim no more favourable to the plaintiff than the terms of the offer.
(2) Unless the court orders otherwise—
(a) if the claim is a personal injury claim—the plaintiff—
(i) is entitled to an order against the defendant for the plaintiff's costs in relation to the claim, assessed on a party and party basis up to and including the day the offer was made; and
(ii) is not entitled to an order against the defendant for the plaintiff's costs in relation to the claim after the day the offer was made; but
(iii) is not required to pay the defendant's costs in relation to the claim on and from the day the offer was made; or
(b) in any other case—
(i) the plaintiff is entitled to an order against the defendant for the plaintiff's costs in relation to the claim, assessed on a party and party basis up to the time when the defendant is entitled to costs under subparagraph (ii); and
(ii) the defendant is entitled to an order against the plaintiff for the defendant's costs in relation to the claim, assessed on a party and party basis—
(A) if the offer was made before the first day of the trial—from the day the period for acceptance of the offer ends; and
(B) if the offer was made on or after the first day of the trial—at and from 11 am on the day after the offer was made.
1012 Offer not accepted and judgment no less favourable to defendant
(1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim no less favourable to the defendant than the terms of the offer.
(2) Unless the court orders otherwise—
(a) the defendant is entitled to an order against the plaintiff for the defendant's costs in relation to the claim, to be assessed on a party and party basis, up to the time when the defendant is entitled to costs under paragraph (b); and
(b) the defendant is entitled to an order against the plaintiff for the defendant's costs in relation to the claim, assessed on a solicitor and client basis—
(i) if the offer was made before the first day of the trial—on and from the day after the offer was made; and
(ii) if the offer was made on or after the first day of the trial—at and from 11 am on the day after the offer was made.
1013 Costs in relation to interest
(1) This rule applies if a plaintiff obtains an order or judgment for the payment of a debt or damages, and—
(a) the amount payable under the order or for which the judgment is given includes interest or damages in the nature of interest; or
(b) the court, by a separate order, awards the plaintiff interest or damages in the nature of interest in relation to the amount.
(2) In determining the consequences for costs under rule 1010, rule 1011 or rule 1012, the court must disregard the interest, or damages in the nature of interest, that relates to the period after the day the offer was made.
(3) For this rule, the court may be informed that the offer was made, and the date that the offer was made, but must not be informed of its terms.
1014 Miscellaneous
(1) Before the court makes an order under rule 1010 or rule 1011, the party to whom the offer was made may request that the party making the offer (the offeror ) satisfy the court that the offeror was at all material times willing and able to carry out the offer.
(2) If the court is satisfied that the offeror was at all material times willing and able to carry out the offer, then, unless the court orders otherwise, the party making the request must pay the costs of the offeror caused by the request.
(3) If the court is not satisfied that the offeror was at all material times willing and able to carry out the offer, then, unless the court orders otherwise—
(a) rule 1010 and rule 1011 do not apply; and
(b) the offeror must pay the costs of the party making the request caused by the request.
(4) Unless the court orders otherwise, any application for an order for costs under rule 1010 or rule 1011 must be made immediately after the order or judgment giving rise to the entitlement to the order for costs is given.