Frost v Miller (No 2)

Frost commenced proceedings against Miller seeking a declaration that a conditional costs agreement was void, as well as for other relief. The dispute was heard and determined in the Supreme Court. Frost was successful in obtaining the declaration sought. The matter now before the court is an application by Frost for an order that Miller pay Frost's costs of and incidental to the proceedings on the standard basis.

The legal issue before the court was whether Frost was entitled to costs on the standard basis. Miller contended that Frost should not be awarded costs on the standard basis because Frost had not made a genuine attempt to settle the proceedings, as evidenced by the Calderbank letter and the insurance agreement. Frost submitted that the Calderbank letter was an offer to settle the proceedings and the insurance agreement did not constitute a genuine offer to settle.

The court found that Frost's Calderbank letter was an offer to settle the proceedings, and that Miller had not made a genuine offer to settle the proceedings. The court held that Frost was entitled to costs on the standard basis. The court found that the fact that Frost had not made a genuine attempt to settle the proceedings did not deprive Frost of the right to costs on the standard basis.

The order of the court was that Miller must pay Frost's costs of and incidental to the proceedings, to be assessed on the standard basis.