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It has long been an anomaly in our High Court and County Court rules of procedure that a defendant has available the powerful tactical weapon of payment into court, yet there is no equivalent procedure available to the plaintiff.
It should be possible for a plaintiff to bring pressure to bear upon the defendant at a far earlier stage in the action. If a defendant can give a plaintiff cause for careful thought with a judicious (and early) payment into court, why should a plaintiff not likewise be able to consider an action before substantial costs are incurred and an added incentive to take the offer seriously at that stage.
The costs consequences of setting an action before discovery, let alone exchange of witness statements and experts reports are obvious.
Naturally a defendant would not want to be put in a position of having to "form a view" on a particular case without having appropriate information available, yet in very many cases, even by close of pleadings stage, a defendant (particularly a "seasoned" defendant such as an insurance company in a professional negligence case) will begin to have a fairly shrewd idea as to the likely liability at the end of the day.
So what is the plaintiff's offer to settle? The idea is that a plaintiff can make an offer to a defendant which, if beaten at trial, will result in a defendant incurring some sort of financial penalty (over and above the usual order to pay the other side's costs on the standard basis).
One idea in use in certain parts of Canada is that in those circumstances a defendant will have to bear not just the plaintiff's "party and party" costs but costs on a "solicitor/own client" basis. Other suggestions are to require the defendant to pay double costs or interest at a more substantial rate than might otherwise have been ordered.
The idea has been proposed before and there are undoubtedly problems with the proposal, not the least of which is the fact that damages in this country have traditionally been compensatory rather than penal. However, with the funding of litigation proving an ever increasing, even insuperable problem, particularly for those who are neither rich nor poor, surely the plaintiff's offer to settle is an idea whose time has come?
Richard Fox is a litigation partner with Kingsley Napley and is the honorary secretary of the London Solicitors Litigation Association. However, the views expressed in this article are entirely his own.