May 14, 2013 · 3:16 am

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.

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April 23, 2013 · 12:36 am

Photographic evidence: a couple of different angles

Using photographs in court can be very persuasive. However, it is useful to know the formalities of getting them into evidence and their probative limits once admitted.

UCPR 31.10

Normally photographs will form an annexure to a witness’ evidence accompanied by a statement about when and where the person took them. In this case, their admission into evidence will rarely be contentious. But for the reasons set out in the section below, it is also useful for the witness to provide as much other information as they can about the photos and the scene they depict. In this way, they will have greater probative force and can be relied upon for a wider variety of purposes.

Sometimes photographs or video will surface very late in the piece, often as late as the day of the trial. Normally, unless served at least 7 days before the hearing NSW UCPR rule 31.10 prevents their tender into evidence. There are a couple of exceptions set out in the rule being:

(i)             the photo was created for the purpose of testing the credit of a witness and the testing party had a legitimate forensic purpose (eg. the element of surprise in cross-examination) in not serving the material previously; or

(ii)           with leave (I imagine a very good excuse would be required).

Needless to say this is a useful section to be aware of when the opponent takes you by surprise.

What can photos be used to prove?

Photos are often used in cases where negligence is an issue. The plaintiff will often return to the scene of the accident shortly afterwards and collect a series of images, which their legal representatives may then seek to rely on in having the court draw key findings of fact.

The NSW Court of Appeal has been very careful to point out that whilst photos can have some probative value, courts should be careful to ensure that they are not the sole source from which a primary fact (eg. a question of distance) should be inferred: Warren v Gittoes [2009] NSWCA 24; Blacktown City v Hocking [2008] NSWCA 144).

As Tobias JA said in both of the above cases, quoting from the Privy Council in US Shipping Board v The Ship St Albans [1931] AC 632, the use of photographic evidence must be the subject of “careful delineation”.

Tobias J also joined Beazley JA in a judgment in Angel v Hawkesbury City Council [2008] NSWCA 130 where it was said by the latter that the perspective of the photos relied upon by the appellant in that case were skewed and deceptive.

Again, these are points which should be raised when faced with damning photographic evidence from one’s opponent.

 

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December 5, 2012 · 5:06 am

Damages easy reference table

It is my experience that when a new brief comes in a lawyer’s natural tendency is to focus on liability rather than what damages actually flow from the relevant breach. Below is a neat little damages reference table I have prepared for a seminar I recently gave. It provides a summary of the kinds of issues to turn one’s mind to and where to seek some guidance.

Ultimately though, damages is a question of fact and the relevant principles only provide guideposts rather than binding rules of law.

Please excuse the formatting. It’s all that WordPress blogging allows.

Contract Tort Aust. Consumer Law Equity
The Standard …had the contract been performed …had the tort not occurred ‘because of’: s236 ACL;

see also Marks v GIO (1998) 196 CLR 494

 Discretionary –based on equitable principles
Causation ‘common sense’/ a (not the) cause 5D Civil Liab. Act (NSW) (CLA) 1.‘but for’ & 2.policy etc. ‘whether or not and why’

NB– CLA damages caps

 Yes: ‘because of ’ Yes –‘causal link’ b/w losses and breach

Nicholls v Wilson [2012] NSWCA 383 at [172]
Remoteness/foreseeability Hadley v Baxendale

1. Ordinary course

2. D knew the type of damage claimed  would result

 ‘not far fetched and fanciful’

cf: intentional torts (s3B CLA: Act doesn’t apply)

 No N/A
Reliance

 

 No No Yes No
Mitigation Plaintiff should act as a ‘reasonable and prudent person’ in mitigating the loss
Pure Economic Loss N/A Perre v Apand (1999) 198 CLR 180: D’s knowledge/P’s vulnerability Yes, not limited by remoteness (as long as causation satisfied) If necessary to properly compensate the plaintiff
Loss of chance/opportunity Court assesses degree of probability and adjusts accordingly: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 Contingencies relevant: Nicholls [181]
Exemplary Damages

 

 No Common law: yes, ‘contumelious disregard’

CLA – not for personal injury (s21)

 No No: compensatory not punitive

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