Open Offers to Settle Legal Proceedings and Legal Costs-a Warning

open settlement offers

Most people are aware that the cost of legal proceedings, particularly litigation proceedings in the High Court, are incredibly expensive.

I have previously written about certain tools you can use to compromise or settle legal proceedings: Calderbank letter and lodgments. I have also written about the use of ‘without prejudice’ communications to attempt to settle a claim and avoid the attendant legal costs.

A recent High Court decision in O’Reilly & anor -v- Neville & ors [2018] IEHC 228 by J. Binchy shows the danger of ignoring reasonable open offers-that is, offers made in open correspondence.

The facts of the case- O’Reilly & anor -v- Neville & ors

The case involved Mr. and Mrs. O’Reilly suing the defendants for breach of contract arising from defects in a dwellinghouse purchased by the O’Reillys from the defendants. J. Binchy, in relation to the substantive action, held as follows:

In summary, I made an order for specific performance, in favour of the plaintiffs of a building agreement entered into between the parties on 30th March, 2005 (the “building agreement”), and I also ordered that the defendants pay the plaintiffs the cost of renting alternative accommodation since they vacated, in August, 2010, the dwellinghouse constructed for them by the defendants pursuant to the building agreement.

However, he held over the questions of costs until a later date, and delivered his judgment on 18/01/2018.

Winner takes all and costs follow the event

The normal rule is that the winner usually has his costs paid by the losing party. This is set out in the Rules of the Superior Courts, Order 99 rule1(3):

(3) The costs of every action, question, or issue tried by a jury shall follow the event unless the Court, for special cause, to be mentioned in the order, shall otherwise direct.

The O’Reillys naturally argued that they were entitled to have their costs awarded to them against the defendants. However, the Judge can consider offers made by the defendant to try to settle the case early as Order 99 rule 1A.(1)(b) states:

(b) The High Court, in considering the awarding of the costs of any action (other than an action in respect of a claim or counterclaim concerning which a lodgment or tender offer in lieu of lodgment may be made in accordance with Order 22) or any application in such an action, may, where it considers it just, have regard to the terms of any offer in writing sent by any party to any other party or parties offering to satisfy the whole or part of that other party’s (or those other parties’) claim, counterclaim or application.

Open offers

In this case the defendants made 6 open offers in an attempt to settle the case and avoid the costs of a hearing which ultimately went on for 11 days. The Defendants argued that these offers should be taken into account by J. Binchy when deciding costs. Mr. Justice Binchy agreed.

He decided, It follows from this that the defendants should be awarded all costs incurred by them in these proceedings from 18th February 2016 onwards, save only those costs that were incurred in connection with the claim of the plaintiffs for reimbursement of the cost of renting alternative accommodation. The plaintiffs are entitled to an order for all other costs incurred by them in the proceedings i.e. all costs incurred by them up to 18th February, 2016, together with such costs as may be deemed to relate only to recovering the cost of renting alternative accommodation.

He also held: Parties to proceedings are to be encouraged and not discouraged from putting forward proposals which will lead to an early resolution of litigation with all attendant benefits, including significant savings of costs and court time. All of this is recognised by O 99, r 1 A (1) of the Rules of the Superior Courts.


The successful party in legal proceedings cannot always assume he will be awarded his costs as against the other party, particularly if he refuses reasonable efforts to compromise the case.

The Rules of the Superior Courts make provision for this and the High Court judges must have regard for these rules and the conduct of the parties to the proceedings.

You can read the full decision of Mr. Justice Binchy in O’Reilly & anor -v- Neville & ors [2018] IEHC 228 by clicking on the link.


Discovery in Legal Proceedings in Irish Law-the Essentials

legal discovery

Discovery is a two stage procedure in litigation. It primarily relates to documents and involves the disclosure and inspection of relevant documents in a legal case.

The purpose of discovery is to ensure the parties in a case know before trial the case they have to meet. For this reason, discovery may encourage parties to settle a case before incurring the cost of a hearing.

The rules for discovery are set out in the Court rules for each Court: District (Order 46A as amended-SI 285/1999), Circuit (Order 32) and High (Order 31).

The parties can make voluntary discovery, that is with agreement. If agreement cannot be reached the Court can be asked to make an order for discovery.

Two things are necessary before a Court will make an order for discovery:

  1. The documents requested are relevant to the issues in the case;
  2. The documents requested are necessary to deal with the case fairly or to save costs.

Discovery is not always appropriate or necessary, but will give an insight into the evidence the other party will be relying on at the hearing.

Inter Party Discovery

Discovery is normally made between the parties, that is, “inter party discovery”. Discovery can also be sought against a person or body not involved in the proceedings (non party discovery).

Type of Discovery

General discovery can be sought in the District or Circuit Courts. This is an order for all documents relevant to the issues in dispute in the case.

Specific discovery must be sought in High Court cases-this means the party seeking discovery must stipulate the exact categories of documents they are seeking and why they are necessary.

Seeking Discovery

Before seeking an order for discovery the parties must try, through correspondence, to agree terms for voluntary discovery between them.

The letter requesting voluntary discovery should

  1. Be to the party against whom discovery is being sought
  2. In the High Court specify the exact categories of documents sought
  3. Specify the period of time within which agreement must be reached.

If agreement is not reached the party seeking discovery can seek an order from Court compelling discovery .

The Discovery Obligation

The obligation is to make discovery on oath of all documents now or previously in a party’s possession, custody or power (eg bank statements which are in custody of the bank) relating to any matter in question in the case. There is no definition of “document” in the Court rules so it is extremely broadly interpreted, and includes electronically stored information (ESI).

Documents Must Be Relevant and Necessary

Relevance is assessed by reference to “relating to any matter in question in the action”. The party seeking discovery must show the documents sought are relevant and necessary to dispose fairly of the matter in question or to save costs.

Fishing expeditions, therefore, are not permitted but in the final analysis the Court will decide what his relevant or not.


Privilege is an entitlement to refuse production of a document, and privilege can be claimed under a number of different headings:

  • Legal professional privilege. This includes legal advice privilege and litigation privilege, essentially communication between legal professional and client.
  • Without Prejudice Statements-a document written without prejudice for the purpose of negotiating a settlement (including mediation) is protected from disclosure or admissibility as evidence in court.
  • State or executive privilege. This includes the State or an arm of the State.
  • Diplomatic privilege.
  • Journalistic privilege.

Where privilege is being claimed over a document it must be done so in a proper form, and the individual document over which privilege is be9ing claimed must be identified.

Non Party Discovery

Non party discovery must be firstly sought voluntarily; if agreement cannot be reached an application can be made to Court for an order. This will require a Notice of Motion and Grounding Affidavit.

Timing of Discovery

Normally discovery is made after the close of pleadings. It is only when pleadings are closed that the parties can ascertain the materials relevant to the issues in dispute. These issues will be clear from the Statement of Claim, Defence, and Replies to Particulars.

Terms of Discovery

The terms of discovery will cover issues like:

  • The timeframe for production of documents
  • The identity of the deponent
  • Whether cross-orders are made, that is, discovery is ordered by the Court on a mutual basis.

Two Stage Process

As stated at the outset, discovery is a two stage process. The first stage is preparing and filing an Affidavit of Discovery. This involves gathering the documents and assessing relevance and necessity.

Each document should be listed and identified and the affidavit will be sworn by the deponent, once it is finalised. It should then be filed in the court office and the other side should be advised that they are ready to exchange affidavits.

The second stage is inspection of the documents, which normally takes place at the office of the solicitor of the party whose documents are being made available for inspection.

Alternatively, a copy of the disclosed documents can be served along with the Affidavit of Discovery, rather than wait for a request for inspection.

Where discovery and inspection has been carried out there is an implied undertaking about the use of the discovered documents, that is, that they will not be used for any other purpose save for the legal proceedings at hand.

Discovery Obligations after Swearing of Affidavit of Discovery

There is no continuing obligation to discover documents which come into existence after discovery has been made.

However, documents which existed at the time of discovery, and which were not disclosed, and come into the hands of the parties after after the swearing of the affidavit should be discovered.

Penalties for Discovery Failings

In the High Court or District Court the party failing to fulfill his discovery obligations can be jailed. However, the more common course of action is for the other party to seek to have the failing party’s statement of claim or defence struck out by way of a notice of motion and grounding affidavit. Alternatively, further and better discovery can be sought in the same application.

A party cannot rely on a document at trial which he has failed or refused to produce.

If mistakes have been made and documents omitted inadvertently, a supplementary affidavit can be filed.

Getting Ready for Trial

It is common for solicitors to try to agree common books of pleadings and discovery documents to be used at trial. If discovery in the case is small a book of all discovery documents could be available for trial.

If agreement cannot be reached each party should have their own books for the trial.

A Notice to Produce is complementary to the discovery process and it allows the serving party to demand inspection of any document referred to in the other party’s pleadings and affidavits of discovery.

A Notice to Produce can be served any time but makes sense to serve it pre-trial.

Personal Injury and Medical Negligence Cases

There are extra obligations in medical negligence and personal injury cases surrounding the exchange of expert medical reports and obtaining medical records. The Freedom of Information legislation can be of assistance to general medical services (GMS) patients and patients of health board hospitals. Data protection legislation can also be availed of to access computerised records in a hospital.

Statutory instrument 391/1998 sets out the disclosure of reports and statements obligations in accordance with the rules of the Superior Courts. These rules, however, should not be seen as an alternative to discovery.

Plaintiff’s are obliged to agree to medical examination by the defendant’s doctor.

Interrogatories are questions which can be raised in lieu of discovery or after inspection of the documents discovered. The aim of interrogatories is to seek out weaknesses in the other party’s case, and ultimately reduce the length of time for the trial, and, therefore, costs.


It may be necessary to seek a Mareva injunction or Anton Pillar order as part of the discovery process, to prevent the disposal of assets or documents.

Solicitors in the Discovery Process

Solicitors have onerous responsibilities in the discovery process “as a client cannot be expected to know the whole scope of his responsibilities regarding discovery without the assistance and advice of his solicitor”.(Murphy v J Donohoe Limited & Others[1996]1 IR 123)


Calderbank Letters and Lodgments-Useful Litigation Compromise Tools

calderbank letter

Going to Court over a dispute or to uphold a legal right or entitlement is all fine and dandy.

You have the opportunity to weigh up your chances of success, obtain professional advice, look at the potential outcomes, estimate the likely legal costs, and decide whether to proceed or walk away.

The decision is yours.

But, what if you are dragged into a potentially costly legal case, one not of your making?

What if somebody, encouraged by friends, family or advisors, or a combination of all three, decides to sue you in the High Court, for example?

This is not a fight of your choosing, and you are told that when it comes to legal costs in litigation in Ireland it is a case of “winner takes all”.

What if the other party is being assisted by his legal team in bringing the case on a “no win, no fee” basis, though, and may not, therefore, be as mindful of costs as you are?

And, finally, the person who is suing you is not a “mark”. In other words, if you successfully defend the case and have your costs awarded you are unlikely to be able to give this practical effect because the person suing you is a “man of straw”.

In plain English, you are not going to be paid, even though you are legally entitled to recover your costs.

What can you do?

There are two devices you can use to try to protect your position and keep your legal costs down:

  1. A Calderbank letter
  2. A Lodgment.

The purpose of these devices is to attempt to force a plaintiff to seriously consider settling the case, rather than going ahead to the high risk, high cost venue of the High Court, or any Court for that matter.

The Lodgment

The Rules of the Superior Courts allow a defendant to pay into Court a sum of money to satisfy a claim. The money is lodged into the Courts office in cases other than personal injuries cases. (In personal injuries cases an insurer can make a similar offer called a tender which has a similar effect, but the money does not have to be actually paid into the Court office.)

If the plaintiff does not accept the lodgment the case goes ahead to trial.

However, if the plaintiff does not win an award greater than the lodgment penal costs provision are applied.

This means that the plaintiff will have to pay the defendant’s costs from the time of the lodgment. These costs will include the cost of the trial, barristers’ fees, solicitors’ fees, experts’ fees etc.

They can be eye watering, quite frankly.

For this reason, the plaintiff would be strongly advised to consider the lodgment sum to settle the case.

The rules of the superior Courts state that the lodgment must be made at specific times in the proceedings; this can make it difficult to gauge the lodgment amount accurately because you may not have all the necessary information to make an accurate, informed decision.

Also, the Courts are reluctant to allow a lodgment outside the times laid down in eh rules.

So, is there anything else that can be done to overcome this limitation?

This is where the Calderbank letter is useful.

The Calderbank Letter

The Calderbank letter derives from an English family law case, Calderbank v Calderbank. In this case, an offer was made “without prejudice except as to costs”.

The purpose of this wording was that reference could be made to the letter in respect of costs if the offer was not accepted. Otherwise, the contents of the letter would enjoy the normal “without prejudice” status, that is, they would not be disclosed to the Court.

The Calderbank letter does not need to follow any particular structure or layout; the Courts can consider any offer in writing in deciding the reasonableness of the parties in their willingness to settle and general approach.

(a) The Supreme Court, in considering the awarding of the costs of any appeal or any application in respect of an appeal, may, where it considers it just, have regard to the terms of any offer in writing sent by any party to any other party or parties offering to satisfy the whole or part of that other party’s (or those other parties’) claim or counterclaim the subject of the appeal, or application.

(b) The High Court, in considering the awarding of the costs of any action (other than an action in respect of a claim or counterclaim concerning which a lodgment or tender offer in lieu of lodgment may be made in accordance with Order 22) or any application in such an action, may, where it considers it just, have regard to the terms of any offer in writing sent by any party to any other party or parties offering to satisfy the whole or part of that other party’s (or those other parties’) claim, counterclaim or application.

(c) The High Court, in considering the awarding of the costs of any appeal from the Circuit Court, may, where it considers it just, have regard to the terms of any offer in writing sent by any party to any other party to the appeal offering to satisfy the whole or part of that other party’s (or those other parties’) claim or counterclaim the subject of the appeal. (S.I. No. 12/2008 – Rules of the Superior Courts (Costs) 2008)

Unlike with a lodgment the time allowed to serve a Calderbank letter is open, and can be done so right up to trial.

The differences between Calderbank letters and lodgments

So, the significant differences between a Calderbank letter and a lodgment revolve around

  1. Timing-when they can be used, and
  2. The degree of discretion the Courts have in relation to penalising a party, as to costs, who will not settle or is unreasonable-wide in relation to Calderbank letters, none in relation to lodgements which are not exceeded by the plaintiff’s subsequent award, if any.

The Calderbank letter and the lodgment are useful tools to help settle a case, and ensure costs are kept on a tight rein.