The recent case of Cole - v - Chief Officer of the
States of Jersey Police  JRC 191 held that the
courts in Jersey ought to attach weight to an offer of settlement
when deciding the issue of costs, even if such offer was not
fortified by a payment in.
The Plaintiff had sought temporary employment with Jersey Post
over the Christmas period in 2001. He was provisionally offered
employment, subject to a police check, but following that check the
offer was withdrawn. The Plaintiff sued both Jersey Post and Jersey
Police. After a strike out application, he was forced to amend his
On 13th June 2007 the Defendant wrote to the
Plaintiff offering £2,500 in full and final settlement of the
damages element of his claim. The offer was stated to be open until
close of business on 22nd June 2007 (the last working
day before the trial was due to start). The offer was not accepted.
At trial Mr. Cole abandoned his claim for all damages, save general
damages, and was ultimately awarded £750.
There followed a further hearing over costs. The Royal Court
found, in Watkins and Connell - v - Egglishaw and
others  JLR 1, that Jersey has generally followed
English principles when deciding how its wide discretion to award
costs ought to be exercised and that there was every reason to
continue that practice following the impact of the Civil Procedure
Impact Of The CPR
The Royal Court, in Sim - v - Thomas  JLR
204 stated that the position in Jersey in respect of
Calderbank offers was that of the pre-Woolf,
English position that a Calderbank offer should
not be used as a substitute for a payment into court where such a
payment in would be appropriate (Cutts - v - Head
 Ch. 290). The court held that if, as
Watkins held, Jersey courts should ordinarily
follow English principles on costs, even if those principles
followed the impact of the CPR, then it would be inconsistent for
the Jersey courts not to follow English practice.
As such, the court adopted and (slightly) adapted the principles
set out by the English Court of Appeal in the case of
Trustees of Stokes Pension Fund - v - Western Power
Distribution (South West) plc  EWCA Civ 854. This
case stated that "an offer should usually be treated as
having the same effect as a payment into court" so long
as the following conditions were satisfied:
The offer should be expressed in clear terms, setting out those
parts of the claim to which it applies, whether it takes account of
any counterclaim and whether it is inclusive of interest;
The offer should be open for acceptance for at least 21 days
and otherwise accord with the substance of a
The offer should be genuine and not a 'sham'; and
The defendant should clearly have the funds at the time when
the offer was made.
Should any of the above conditions not be satisfied, the court
in Trustees of Stokes further held, that
did not negate the effect of the Calderbank offer
in its entirety, but merely that less weight ought to be given by
the court to the offer when deciding the issue of costs.
Where none of the conditions was satisfied it was held likely
that the court would find that the offer afforded the defendant no
costs protection at all.
No Costs Protection
In Cole the offer was stated only to be open
for a period of 9 days. The court stated that there was no
requirement for an offer to be open for 21 days under the Royal
Court Rules (Rule 6/33) and as such, in Jersey, such an offer only
had to be open for a reasonable period. The court found that the
conditions in Stokes were satisfied in this case
and in the circumstances asked that there be no order as to
If one adopts the court's logic that Jersey ought to follow
the practice of the English courts, then it seems from
Stokes that everyone's word would be good
enough. Dyson LJ held that it would be very difficult for a
claimant who refused an offer of settlement to contend after the
trial that the offer was not genuine, or that the defendant was not
good for the money, unless such arguments were raised at the time
the offer was refused.
Doubts As To Genuineness
If no such arguments were raised it was likely that a court
would take the view that the claimant had rejected the offer, not
for any doubts as to its genuineness, but because the claimant
thought the offer was too low. It appears, therefore, as though
payments in to fortify offers have become unnecessary in Jersey,
save as a psychological weapon, and that any offer will afford
protection as to costs provided it is clear, genuine and open for a
reasonable period of time.
This article first appeared in the winter 2008/09 issue of
Appleby Jersey's Resolution newsletter.
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