Gagliardi v KP Hicks (No 2)

Gagliardi v KP Hicks (No 2) is a case where the plaintiff sought an indemnity costs order against the defendant, following the defendant's rejection of a Calderbank offer made after mediation. The offer was made one month before the trial and one week before the application to adjourn the trial was listed. The dispute involved whether it was unreasonable for the defendant to reject the offer, which was kept open for seven days with a fourteen-day payment term. Additionally, the court considered whether the offer was sufficiently clear or open to be made where the plaintiff offered to accept less than the amount it had sued for.

The legal issues before the court were whether the defendant's rejection of the Calderbank offer was unreasonable and whether the offer was sufficiently clear and open. The court examined the circumstances surrounding the offer, including the timing and the terms of the offer, as well as the plaintiff's offer to accept less than the amount sued for. The court found that the defendant's rejection of the offer was unreasonable and that the offer was sufficiently clear and open.

The court reasoned that the defendant's rejection of the Calderbank offer was unreasonable given the circumstances. The offer was kept open for a reasonable period and had reasonable payment terms. Additionally, the plaintiff's offer to accept less than the amount sued for demonstrated the offer's clarity and openness. The court held that the defendant's rejection of the offer was unreasonable and ordered indemnity costs against the defendant. The court emphasised the importance of parties considering Calderbank offers seriously and the consequences of rejecting such offers without a valid reason.

The final orders of the court were that the defendant pay the plaintiff's costs of the application on an indemnity basis. The court also noted that the defendant's conduct throughout the proceedings contributed to the costs awarded and that the defendant's conduct was unreasonable and vexatious. The court's decision serves as a reminder of the importance of considering Calderbank offers seriously and the consequences of rejecting such offers without a valid reason.