Snowden v AMA [2020] NSWSC 276

“My offer is: you lose.”

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Parties in a legal dispute often exchange settlement offers.

Speaking loosely, many of those offers might be characterised as: “I am claiming $X + Y, but I’ll go away if you pay me $X.”

Sometimes an offer is made that could be described as: “Let’s agree that you lose, but I won’t chase you for my legal costs. We will each pay our own.”

Generally, when a party “loses” in Court proceedings, they will pay the “winner’s” legal fees.

That way, an offer of “you lose, but I won’t seek costs” can be seen as a compromise.

The Court considered this recently.

A D made an offer that the D would get judgment - or “win” - but wouldn’t seek costs: [7]

The offer was not accepted. The matter went to final hearing, and the D got judgment - the D “won”: [1]

The D said that the P’s failure to accept the offer was unreasonably, meaning the P should have to pay the D’s legal costs at a high level, on the “indemnity” basis: [3]

To succeed the D had to argue the offer was a genuine compromise. The D failed to convince the Court of that. This is because there is no evidence of the D disclosing the amount of costs at the time of the offer, and because while the P’s claim was weak, there was still some doubt about how a Court might have ultimately received the evidence: [11], [12]

The original “ordinary” cost order remained.

#makdap