Andrenacci v Australian Pacific Airports (Melbourne) Pty Ltd (Ruling No 2)
[2017] VCC 864
•14 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-13-00870
| DAYANA ANDRENACCI | Plaintiff |
| v | |
| AUSTRALIAN PACIFIC AIRPORTS (MELBOURNE) PTY LTD (ACN 076 999 114) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 26, 29, 30 and 31 May; 1, 2, 5, 6, 7, 8, 9, 13, 14, 15, 16, 19, 20 and 23 June 2017 | |
DATE OF RULING: | 14 July 2017 | |
CASE MAY BE CITED AS: | Andrenacci v Australian Pacific Airports (Melbourne) Pty Ltd (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 864 | |
RULING AS TO COSTS
---
Subject: COSTS
Catchwords: Plaintiff unsuccessful in jury trial for damages for personal injury – application by defendant for judgment and costs on an indemnity basis following rejection of an offer of compromise – matters to be considered – whether rejection of offer unreasonable in the circumstances.
Legislation Cited: Civil Procedure Act 2010; County Court Civil Procedure Rules 2008, o28; Supreme Court (General Civil Procedure) Rules 2015, r26.08.1(2)
Cases Cited:Andrenacci v Australian Pacific Airports (Melbourne) Pty Ltd (Ruling) [2017] VCC 188; Calderbank v Calberbank [1975] 3 All ER 333; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; Blackman & Ors v Grant & Anor (Ruling No 2) [2010] VSC 246; Ultra Thoroughbred Racing v Those Certain Underwriters at Lloyd’s London (Ruling No 2) [2011] VSC 636; Victorian WorkCover Authority v The Australian Steel Company (Operations) Pty Ltd [2015] VSC 81; Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398; Bird v Ford (No 2) [2013] NSWSC 429; Victorian WorkCover Authority v O’Brien & Ors [2017] VSC 68; Pepe v Platypus Asset Management Pty Ltd (No 2) [2011] VSC 21
Ruling: Defendant entitled to judgment and costs on a standard basis.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy SC with Ms C Spitaleri | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr G Worth | Sparke Helmore |
HIS HONOUR:
Preliminary
1 After a lengthy trial, which concluded on 20 June 2017, the jury returned a verdict that there was no breach by the defendant of its duty as an occupier which was a cause of the plaintiff’s injury, loss and damage.
2 The defendant seeks judgment in accordance with the jury’s verdict.
3 The defendant seeks costs of the proceeding on a standard basis, and further, that the plaintiff pay those costs on an indemnity basis from 1 February 2017 to date.
4 The basis of the claim for indemnity costs is that on 30 January 2017, the defendant’s solicitors served an Offer of Compromise in the following terms:
“Take Notice
In accordance with Order 26 of the County Court Civil Procedure Rules 2008, the defendant offers to compromise the plaintiff’s claim as follows:
1 The defendant pay the plaintiff the sum of $100,000.
2 The payment referred to in paragraph 1 is inclusive of all costs, disbursements and interest.
The Offer of Compromise remains open for acceptance for 14 days after the date of service.
Dated 30th January 2017.”
5 I was provided with two affidavits relating to the application. The first was an affidavit of Ms Rosemary Hamer, solicitor for the defendant, sworn 21 June 2017, and the other, an affidavit of Ms Isabelle Murphy, solicitor for the plaintiff, affirmed 22 June 2017.
6 I heard submissions on 23 June 2017.
Relevant facts
7 In April 2010, the plaintiff slipped and fell on a stationary travelator at the Melbourne (Tullamarine) Airport, suffering injury, in particular, to her right wrist.
8 As the evidence emerged, the following issues became relevant as to whether the defendant was in breach of its duty as the occupier of the Airport, in particular, the travelator:
· The fact that the plaintiff slipped upon the travelator was evidence itself that, with a 12-degree downwards slope, that the surface was slippery.
· There had been no slipping incidents on travelators at the Airport before the plaintiff’s incident.
· There was evidence from two engineers in respect of the slip coefficient of the surface of the travelator. The evidence from the engineer retained by the plaintiff was that the surface was in the high to very high category in respect of the risk of slipping. While the evidence from the engineer retained by the defendant was to the contrary, the surface at the time was appropriate and not unsafe.
· Subsequently, in approximately 2015, a more effective slip resistant surface was applied to the travelator which was said to be an admission of the inadequacy of the slip resistance on the surface prior to that time, and, further, had that surface been applied earlier, the prospect of the plaintiff slipping would have been significantly reduced.
· Whether the defendant ought to have warned patrons, including the plaintiff, in circumstances where the travelator was stationary at the time, and at a 12-degree downwards slope, of the risk of slipping.
9 The plaintiff was born in Venezuela and became registered as a dentist in that country. Upon her migration to Australia, she worked as a dental assistant, earning, around the time of the incident, $100,000 gross per year. Subsequent to the incident, she became qualified and registered to practice as a dentist. She claims she is unable to work as a dentist because of her wrist injury.
10 The plaintiff’s claim as to past and future economic loss was substantial. The claim in respect of past economic loss varied according to a range of figures which were provided to the jury, and resulted, presuming the jury accepted the plaintiff’s contention that she was unable to work, at between $350,000 and $600,000. On the same basis, the plaintiff’s claim for future loss was calculated at between $1,000,000 and $1,800,000. On any view, depending upon the evidence the jury accepted, the claim was potentially very substantial.
11 The defendant’s Offer of Compromise was made on 30 January 2017. There were subsequent offers of compromise made, but they are not relevant for this Ruling. The Offer of Compromise was made after mediation and some short time before the date upon which this proceeding was first fixed for trial, 22 February 2017.
12 The trial did not proceed on that date, as there was an application in relation to the plaintiff’s then expert engineer, Mr Mark Dohrmann. The application was to prevent the proposed evidence of Mr Dohrmann to be led at trial, as, for various reasons, it did not comply with the expert evidence requirements of the Civil Procedure Act 2010, and the County Court Civil Procedure Rules 2008 (“the Rules”). Having heard evidence by voir dire, her Honour Judge Tsalamandris ruled, on 27 February 2017,[1] that no part of Mr Dohrmann’s evidence be led at trial. An adjournment of the trial was then sought to enable the plaintiff to obtain alternative expert engineering evidence.
[1]Andrenacci v Australian Pacific Airports (Melbourne) Pty Ltd [2017] VCC 188
13 Subsequently, a report from another materials engineer, Mr David Padfield, dated 1 May 2017, was obtained. Mr Padfield gave evidence in the trial before the jury.
14 The defendant had obtained several reports of an expert engineer, Dr Culvenor, who provided reports of 16 July 2014 and 13 February 2015, and who also gave evidence at trial.
15 By the time Mr Padfield came to undertake an assessment of the surface of the travelator, a slip-resistant tread had been laid so that he was unable to carry out any scientific testing. He relied upon various measurements which had been undertaken by Dr Culvenor, and used different Australian Standards from those utilised by Dr Culvenor, to measure the slip-resistance coefficient on the surface at the time of the incident.
16 The inability of the plaintiff to rely upon the report and evidence of Mr Dohrmann, and likewise, the inability of Mr Padfield to test the original surface, were significant developments in the proceeding leading up to the trial. The issue of whether the surface of the travelator met the slip-resistant Standards imposed became evidence of significance. It occupied evidence over a number of days through each of the respective engineers and was part of extensive submissions by both counsel to the jury on the issue of breach of duty.
17 Mr Worth, for the defendant, submitted that, from a relatively early time, there were doubts about the credibility or reliability of the proposed evidence of Mr Dohrmann, as he had, by email dated 17 March 2015, said that he suspected there had been changes to the surface of the travelator which may affect his opinion. As things turned out, these doubts were unfounded. Nonetheless, his concerns were conveyed to the plaintiff’s solicitors. He said the solicitors were ‘on notice’ there would be problems with this evidence. I do not see this as a matter of any particular significance in assessing the evidence of Mr Dohrmann. I accept Mr Hore-Lacy’s submission that until the challenge to Mr Dohrmann’s evidence in the voir dire and her Honour Judge Tsalamandris’ Ruling, there was little to suggest Mr Dohrmann’s proposed evidence would not be admitted at trial on the relevant issues.
18 Another issue of significance which occurred between the date of the Offer of Compromise and the date of the jury verdict related to surveillance film taken in October 2016, and January 2017. This was shown to most of the medical practitioners who gave evidence. The surveillance film assumed some importance. A number of the practitioners retained took the view that what was depicted did not change their view about what the plaintiff was and was not able to do, but to a number of practitioners, it had a dramatic effect. Mr Murray Stapleton, a consultant hand surgeon retained on behalf of the plaintiff, who had provided two reports supportive of the plaintiff’s injuries, and their impact upon her recreational, domestic and work capacities, changed his opinion completely. He said that the actions of the plaintiff depicted on the video showed that there was no underlying physical basis for her complaints and restrictions.
19 Further, a consultant hand surgeon retained on behalf of the defendant, Mr John Buntine, having seen the surveillance film, said it confirmed his view that the plaintiff had no incapacity and only a minor injury only, which would have resolved over three or so weeks.
20 There was, of course, no requirement for the defendant to put the plaintiff on notice of the surveillance film. Nonetheless, in my assessment, the film had a significant effect upon the opinions of a number of the medical practitioners who gave evidence, and had the potential to affect the credibility of the plaintiff.
21 Mr Hore-Lacy further pointed to the fact that a number of witnesses were called on behalf of the defendant who were former employees of the defendant or of associated companies, all of whom said that there had been no incidents of slipping on the travelator prior to the plaintiff’s incident, that it was well maintained and appropriate in its then state as a pedestrian walkway. He said the substance of this evidence was not known until it came out in Court. In trials of this nature, there is no requirement for witness statements to be provided to an opposing side. I do not regard this as an issue of significance in the scheme of things.
22 According to the affidavit of the plaintiff’s solicitor, Ms Murphy, the plaintiff’s solicitor’s costs and disbursements as at the date of the Offer of Compromise, were approximately $83,000. Had the Offer of Compromise been accepted, and after payment of Medicare and private health insurance repayments, there would have been no funds left for the plaintiff.
Legal principles
23 Order 26 of the County Court Civil Procedure Rules 2008 regulates costs consequences upon failure to accept an offer of compromise. Order 26.08 provides that where an offer of compromise is made, and a judgment obtained less favourable than the offer, then unless the Court otherwise orders, a defendant is entitled to indemnity costs from the date of the offer. Order 26 contemplates an offer made inclusive of costs. However, the Rules do not displace the wide discretion granted to courts in relation to costs orders.
24 In Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2),[2] the Court of Appeal said:
[2](2005) 13 VR 435
“In our view, these competing considerations can be sufficiently accommodated by applying a test of (un)reasonableness. The critical question is whether the rejection of the offer was unreasonable in the circumstances. We see no justification for a more stringent test such as ‘manifestly’ or ‘plainly’ unreasonable.
Of course, deciding whether conduct is ‘reasonable’ or ‘unreasonable’ will always involve matters of judgment and impression. These are questions about which different judges might properly arrive at different conclusions.
…
The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:
(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree’s prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed;
(f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.”[3]
[3]Hazeldene’s (ibid) at paragraphs [23], [24] and [25]
25 In Blackman & Ors v Gant & Anor (No 2),[4] the plaintiffs made an offer of compromise to the defendants which was not accepted. In determining whether to award indemnity costs against the second defendant after a verdict more favourable to the plaintiff, the Court discussed the difference between a Calderbank offer and an offer of compromise. Vickery J said:
“ In the first place, unlike the position with a Calderbank letter, rejection by a defendant of an offer of compromise made by a plaintiff does not merely give rise to a matter which the Court should have regard when considering whether to order indemnity costs. Provided the threshold elements are made out, namely: the service of an offer of compromise which complies with Order 26; the non-acceptance of the offer at the time of verdict or judgment; and the obtaining by the plaintiff of a judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer; the plaintiff becomes entitled under s.26.08(2) to a special order for costs pursuant to either s.26.08(2)(a) or (b), whichever is applicable. In other words, in making a claim for a special costs order under s.26.08(2), the plaintiff who is successful at trial in equalling or bettering the offer of compromise which has not been accepted by an unsuccessful defendant, starts from a position of an entitlement to costs on a special basis, once the threshold matters have been established.
In the second place, although as is made clear in Hazeldene's Chicken Farm, a Calderbank letter does not give rise to any presumption that the party rejecting the offer should pay the offeror’s costs on an indemnity basis if the offeree receives a less favourable result at trial, the effect of r.26.08 is quite different. In particular r.26.08(2) gives rise to an entitlement to an award of costs in favour of a plaintiff on the special basis provided for, ‘unless the Court otherwise orders’. This creates a regulatory presumption permitting costs to be awarded in this manner, subject to the Court being satisfied that special circumstances exist which justify the Court’s discretion being exercised in a manner which departs from the Rule. Such circumstances may include, but are not necessarily limited to, considerations as to whether the rejection of the offer was reasonable.”[5]
[4][2010] VSC 246
[5]At paragraphs [13] – [14]
26 There are a number of authorities which have considered an offer of compromise (or a Calderbank offer) which is no more than an offer to withdraw and bear costs. While each case must be determined upon its own facts, it has often been said that an offer to withdraw and bear costs is no more than an offer to capitulate and does not give rise to an entitlement to indemnity costs.[6]
[6]Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London (Ruling No 2) [2011] VSC 636; Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398, but see Bird v Ford (No 2) [2013] NSWSC 429
27 In closing submissions, Mr Worth relied upon Victorian WorkCover Authority v The Australian Steel Company (Operations) Pty Ltd[7] where the Supreme Court considered whether an offer of compromise served on the defendant by the plaintiff was made in circumstances where the defendant did not have enough information to properly assess whether to accept the offer. The offer was served on the defendant by the plaintiff on 14 October 2014. On 3 March 2015, following a trial, Kaye J[8] handed down a judgment that was no less favourable to the plaintiff than the terms of the offer. As such, the plaintiff sought costs of the proceeding on an indemnity basis from 14 November 2014 (the date at which the offer lapsed) pursuant to Rule 26.08.1(2) of the Supreme Court Rules.
[7][2015] VSC 81
[8]As his Honour then was
28 The application was opposed, in that in September 2013, the plaintiff had commenced proceedings against the employer and the defendant. Then, in March 2014, the plaintiff had issued a subsequent proceeding against the defendant which was the subject of his Honour’s judgment. The parties understood that the documents and pleadings exchanged in the first proceeding would be relied upon in the subsequent proceeding. The defendant claimed it was not able to properly assess the offer of compromise as:
“(a) Discovery and other interlocutory steps in the primary proceeding had not been completed; and
(b) There was insufficient material available to make an assessment of liability and quantum in the present proceeding; and
(c) There was insufficient material to enable the defendant to consider the interaction between the primary proceeding and the present proceeding.”[9]
[9]Victorian WorkCover Authority v The Australian Steel Company (Operations) Pty Ltd (ibid) at paragraph [6]
29 In finding that the defendant was in possession of adequate information to assess the offer of compromise, Kaye J said:
“It is clear, from the terms of r 26.08(2), that, ordinarily, where a plaintiff achieves a result at trial that is no less favourable than the terms of an offer it has made in the course of the trial, the plaintiff should be entitled to indemnity costs as prescribed by that rule. As Vickery J observed in Blackman & Ors v Ganz & Anor (No 2), Rule 26.08(2) creates a presumption that costs be awarded in that manner, unless the court is satisfied that there are particular circumstances which should displace that presumption.
It is not necessary for me to consider the type of circumstances which might qualify as being sufficient to displace the presumption created by Rule 26.08(2). I would accept that such circumstances might be found, where, in a case such as this, a defendant is genuinely unable to properly assess an offer of compromise at the time at which it is served, because the plaintiff, or another party to the proceeding, has in its possession information of which the defendant is ignorant, and which is critical to a proper assessment of offer. However, it is clear, from the matters continued in the affidavits, that this was not such a case.”[10]
[10]At paragraphs [12] and [13]
30 Kaye J further said that when the offer of compromise was served, the defendant had a significant amount of information in its possession, by which it could assess its own potential liability for the injury sustained to the plaintiff, its potential exposure to the plaintiff in the primary proceeding and the amount of damages which it would have owed to the plaintiff for the injury suffered.[11] Mr Worth submitted that this meant the test was not whether the plaintiff had all the information possible, but rather a significant amount of information possible to assess the risks of the case.[12]
[11](ibid) at paragraph [14]
[12]Defendant’s submissions paragraph [3]
31 In Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2),[13] the Court of Appeal, in considering whether an offer did not represent a genuine compromise and therefore failed the reasonableness test, said:
[13](Supra) at paragraphs [13]-[17]
“There is authority to the effect that where the offer does not involve a genuine compromise, but is in fact either an invitation to capitulate or a derisory or nominal offer, it would not be unreasonable for the losing party to have rejected it.
In Berrigan Shire Council v Ballerini (No 2) Callaway JA observed that the treatment of Calderbank offers comes down to the question of whether the rejection was unreasonable in the circumstances. In that case, the offer was an offer to walk away. Callaway JA characterised it as a demand to capitulate that could reasonably be rejected.
In the case of Truenergy Pty Ltd v Dispute Resolution Panel (No 2) Cavanough J considered that in order for a Calderbank offer to be taken into account by the court, it should be attractive in all the circumstances and not merely comprise, in effect, a demand to capitulate.
In the recent case of Pepe v Platypus Asset Management Pty Ltd (No 2) Almond J held that offers of $65,000 and $90,000 (inclusive of costs) were properly rejected in circumstances where the claim was in excess of one million dollars.
In our opinion and in the circumstances of this case, it was not unreasonable for the Commissioner to reject the offer made on 18 March 2011. The offer, in effect an offer to walk away, in our opinion amounts to a demand to capitulate. A reduction of $5000 from a costs order may realistically be regarded as de minimis in the circumstances. The offer does not represent (in financial terms) a serious endeavour to resolve the proceeding. It was, given the amount involved in the case, no more than a token offer.”
32 In Victorian WorkCover Authority v O’Brien & Ors,[14] J Forrest J, having referred to Commissioner of State Revenue v Challenger,[15] noted that while witness statements may have been available to parties prior to trial, the case turned very much upon lay evidence in relation to the circumstances of an incident involving a horse, causing injury to the plaintiff. J Forrest J found that the quality of the opinion of an expert witness could not have been analysed until the facts had been determined. That could only be done at the conclusion of the evidence at trial.[16] In August 2015, when the VWA had rejected the offer, they had reports of the expert available which identified a causal link between the lack of light and the accident. While J Forrest J ultimately found that opinion insufficient to establish causation, he held that it was reasonable that the Authority relied upon it as part of the matrix of evidence.[17] This evidence considered as a whole made it appropriate and not unreasonable for the VWA, in August 2015, to decide to prosecute the claim instead of accepting what was, in effect, an offer to capitulate.[18]
[14][2017] VSC 68
[15]Supra
[16]Victorian WorkCover Authority v O’Brien & Ors (ibid) at paragraph [11(b)]
[17]Victorian WorkCover Authority v O’Brien & Ors (ibid) paragraph [11(c)]
[18]Victorian WorkCover Authority v O’Brien & Ors (ibid) paragraph [12]
33 In Pepe v Platypus Asset Management Pty Ltd (No 2),[19] the defendant made two offers of compromise. The first was made on 2 June 2008 and the second on 18 July 2008. The first offer was that the proceeding be compromised for $65,000 plus party and party costs, while the second offer was for $90,000 plus party and party costs. The defendant submitted that the offers were made in sufficiently clear terms, and sufficient time was given to the plaintiff to consider those terms. Further, the defendant submitted that at the time the offer was made, the plaintiff, properly advised, would have known the potential cost consequences of rejecting the offers. On this basis, the defendant submitted the rejection of the offers was unreasonable, and sought indemnity costs.
[19][2011] VSC 21
34 In finding that the plaintiff had not acted unreasonably in rejecting the offers, Almond J found that the outcome of the case was primarily concerned with the proper construction of an employment contract and whether there had been misleading and deceptive conduct. That depended on events leading up to and including a meeting between the plaintiff and the defendant on 11 March 2006. The defendant submitted that the details of the events would be well known to the plaintiff, as it was his own evidence. However, the plaintiff submitted that the first time he was made aware of the defendant’s evidence relating to the meeting was when he gave evidence in Court.
35 His Honour considered there to be merit in that view and found that the plaintiff did not, at the time of the offers, have the opportunity to consider the defendant’s account of the version of discussion that had occurred at the 11 March 2006 meeting. The documents in the court book under discovery or documents produced pursuant to subpoena did not shed any light on the defendant’s version. His Honour made further comments as to the value of the offers:
“Further, in my view the monetary amount offered pursuant to the offers of compromise (being $65 000 and $90 000 respective) was relatively small by comparison to the amount of the claim (in excess of $1,000, 000). …”[20]
[20]Pepe v Platypus Asset Management Pty Ltd (No 2) (ibid) at paragraph [15]
Analysis
36 As Mr Hore-Lacy said in submissions, at no time could the plaintiff’s case, right up to the time of verdict, be regarded as hopeless or without merit. There was evidence upon which the jury could have found the defendant in breach of its duty as occupier in relation to the surface of the travelator. Had that occurred, then the quantum of the plaintiff’s damages, depending again upon the evidence the jury might accept, was substantial, at its highest several million dollars.
37 Further, although the Offer of Compromise was made a short time prior to the original listing of the trial in February 2017, and after mediation, it was made before the plaintiff’s solicitors became aware that it was not possible to call Mr Dohrmann to give evidence. It was necessary to retain a new engineer, who did not have the benefit of testing the surface of the travelator as it was at the time of the plaintiff’s incident. This, in my view, had a significant effect upon the assessment of liability of the case.
38 Further, neither the plaintiff nor her solicitors were in a position to assess the potential effect of the surveillance film. That film, as the trial proceeded, became significant as to the plaintiff’s credibility and as to the medical opinions.
39 Of course, a jury trial is an organic beast. There can be ups and downs; some witnesses who are expected to give cogent and persuasive evidence fall in cross-examination; sometimes an issue which is thought to be insignificant achieves unexpected prominence. It is impossible to predict every turn and twist of a jury trial.
40 Nonetheless, the turn of events concerning Mr Dohrmann, and the use of the surveillance film, were both matters of particular significance in this trial and, in my view, affected the capacity of the plaintiff’s advisors to give considered and careful advice as to the outcome of the trial. Further, I accept the evidence of the plaintiff’s solicitor, Ms Murphy, that the offer of $100,000, inclusive of costs, would mean that the plaintiff received nothing in her hand from the offer. It was, in reality, no more than an offer to pay her legal costs. While not a capitulation, nor a mere offer to walk away, it did not, in the circumstances of the potential judgment, represent a realistic attempt to sensibly negotiate and resolve a hard contested and complex case. The defendant’s solicitors, experienced litigators, would be aware that such an Offer of Compromise would have offered little in net terms to the plaintiff.
41 I bear in mind that the defendant’s offer was a formal Offer to Compromise rather than a Calderbank offer. As was said by Vickery J in Blackman, there is a presumption that the defendant be entitled to its costs on an indemnity basis unless special circumstances exist which would lead to a departure from that presumption. I am satisfied that special circumstances exist in this case.
42 In all these circumstances, I am satisfied that the plaintiff’s decision not to accept the offer was not unreasonable.
43 The defendant should be entitled to judgment and costs on a standard basis.
- - -
0
9
0