Offers of Compromise: 10 Rules

I recently presented at Tress Cox Lawyers on offers of compromise. I have reduced the key principles down to the following set of ten.

1. Unless it’s a verdict for the defendant with each party to pay its own costs,  don’t mention costs in a 20.26 offer; let the UCPRs do the work.
2. UCPR offers should be made as far out from the trial as possible (preferably more than 2 months).
3. State that it’s an offer under rule 20.26 but note in the covering letter that it’s a Calderbank offer in the alternative.
4. A Calderbank offer must give something of substance away (i.e. costs, a right, money) for its rejection to result in an indemnity costs order, ie. a genuine compromise.
5. Rejection of a Calderbank offer must have been unreasonable taking into consideration all of the relevant circumstances at the time the offer was made for it to result in an indemnity costs order.
6. The offeree’s prospects must be considered in deciding how generous (or not) a Calderbank offer ought to be so as to enable its rejection to be deemed unreasonable and result in an indemnity costs order.
7. In drafting a Calderbank offer state the offeror’s position in the litigation with clarity and enough (but not too much) detail.
8. Separate the elements of the offer which relate to the principal claim and any cross-claim.
9. Interest should be stated separately with the basis (eg. under a contract or Civil Procedure Act) and mathematics clearly exposed.
10. Make a new offer in any appeal proceedings.