Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Snowden v AMA (No 2) [2020] NSWSC 276. We will talk about a compromise implemented in the final settlement offer between parties and what exactly this means for either side.

Parties in a court battle often exchange settlement offers. Many of those offers might be loosely described 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.” 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. D made an offer that it would get judgment – or “win” – but wouldn’t seek costs: [7] The offer was not accepted. The matter went to hearing, and the D got judgment – the D “won”: [1] The D said that the P’s failure to accept the offer was unreasonable, meaning the P should have to pay the D’s legal costs on the “indemnity” basis: [3] The D had to argue the offer was a genuine compromise. The D failed to convince the Court of that. This is because there was 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 receive the evidence: [11], [12] The original “ordinary” cost order remained. [13]