Lodgment setting up tender

Dandelion6

Can someone explain in simple terms what this means? Thanks

johnnyskeleton

When a case is working its way through the courts, one party may make a settlement offer (tender) to the other side. If the other side refuses, they can lodge the funds into the court bank account, and the other side can choose to take this lodgement in settlement of the case if they wish.

If the other side doesn't take the lodgement and it goes to trial, the lodgement might have implications as to whether the other side can recover their legal costs or not.

Our man in Havana

Basically if the winning party is awarded less than the lodgement he/she will not get their costs from the other party.

barrabus

If you are the defendant in a case and you think the liability is say 10000, but the Plaintiff says it is worth more.
You (the defendant)can lodge 10000 with the court (usually you would lodge say 10010 to beat a round number award by a judge) and if the plaintiff fails to beat the lodgment, then the Plaintiff will be liable for your costs from the date they were notfied of the lodgment.

A tender works in the exact same way except tenders can only be made by inurance companys (and possibly the state), the only difference with a tender is the money need not physically be lodged with the court office. This is beacause the insurer / state are established as being agood to pay up.

Our man in Havana

Does the plaintiff know how much the lodgement is beforehand?

Maximilian

Yeah. It would like gambling otherwise

Dandelion6

Bond-007 wrote: »

Basically if the winning party is awarded less than the lodgement he/she will not get their costs from the other party.

Ahhh, I take it that is what my (stupid, badly-written) textbook means when it refers to the plaintiff failing to "disprove" the tender?

Does making such a lodgment have any implications with regard to admission of liability?

maidhc

barrabus wrote: »

If you are the defendant in a case and you think the liability is say 10000, but the Plaintiff says it is worth more.
You (the defendant)can lodge 10000 with the court (usually you would lodge say 10010 to beat a round number award by a judge) and if the plaintiff fails to beat the lodgment, then the Plaintiff will be liable for your costs from the date they were notfied of the lodgment.

A tender works in the exact same way except tenders can only be made by inurance companys (and possibly the state), the only difference with a tender is the money need not physically be lodged with the court office. This is beacause the insurer / state are established as being agood to pay up.

Exactly correct.

johnnyskeleton

Costs are at the discretion of the trial judge (save as provided for in the PIAB Amendment Act 2007), so notwithstanding that an award of damages is greater than the lodgement, he can still award the plaintiff his or her costs (typically where the plaintiff is also seeking to vindicate their rights with a finding of liability or a finding that they were defamed, or for another specified reason).

I was of the understanding that anybody could make a tender, it's not just confined to insurance companies and the state. A tender is a once off offer, whereas a lodgement is on the table so long as the funds are in court.

You can make a lodgement with or without liability, except in certain circumstances such as defamation.

maidhc

johnnyskeleton wrote: »

I was of the understanding that anybody could make a tender, it's not just confined to insurance companies and the state. A tender is a once off offer, whereas a lodgement is on the table so long as the funds are in court.

Nope. Ordinary people must actually lodge the money into court, but insurers get away with making a mere promise!

Generally though if an injured party does not beat the lodgment they face costs as per barrabus.

johnnyskeleton

maidhc wrote: »

Nope. Ordinary people must actually lodge the money into court, but insurers get away with making a mere promise!

I don't see how a distinction could be officially recognised. Any defendant is entitled to make a settlement offer, whether on a without prejudice basis or in an open letter as an unconditional offer to settle the case. While it is open to a Plaintiff to doubt that the funds will be paid, and request that they be lodged to court, there is no justifiable distinction between insurers and any other defendant. Moreover, as the defendant will usually be an ordinary person backed by an insurance company as opposed to an insurance company being the defendant, this distinction makes little sense.

It may be that a tender from an insurance company or the state would be more persuasive when it comes to refusing to grant the plaintiff's costs, but it would seem inherently unfair to have a rule which favours the state and insurers when they are no different than any other party that comes before the court. There might even be an Article 35 problem with such a rule if it were the case.

maidhc wrote: »

Generally though if an injured party does not beat the lodgment they face costs as per barrabus.

Yes but a trial judge still has the discretion as regards costs, unlike where they fail to beat a piab award, where there has been statutory intervention.

Dandelion6

I'm still a little confused. I understand what you guys are saying, but it doesn't seem entirely consistent with what my textbook says. It says there are three type of lodgments:

1) Lodgment in satisfaction of the claim, by which the defendant is taken to have admitted the claim;
2) Lodgment with the defence denying liability. This money remains in Court pending the result of the proceedings between the parties if the plaintiff does not accept the lodgment. If the plaintiff succeeds in his action, but is not awarded more than the amount of the lodgment, the defendant will be entitled to have his legal costs from the date the lodgment was made paid by the plaintiff.
3) Lodgment with the defence setting up tender. In this situation the plaintiff is entitled to accept the lodgment. However, the plaintiff will only be entitled to have his costs paid by the defendant if he continues with the proceedings, and disproves the tender. If the plaintiff does not disprove the tender, the defendant will be entitled to have his entire costs paid by the plaintiff.

What people here are describing sounds more like #2 to me, except as regards the denial of liability. From what the book says it sounds like the difference with #3 is that the plaintiff gets to keep the money, but if he looks for more and doesn't get it, he will have to pay all the defendant's costs and not just those after the date of lodgment. (I am more than prepared to accept that my book may be wrong, it wouldn't be the first time on this course...)

Dandelion6

Just to clarify the above is with respect to High Court. For Circuit Court it says #1 (with or without admission of liability) and #3 apply.