Ultra Thoroughbred Racing v Those Certain Underwriters (Ruling No 2)

Ultra Thoroughbred Racing, the plaintiff, pursued legal action against two defendants, Those Certain Underwriters and another party, before the court. The plaintiff sought damages for breach of contract and other related claims. The case revolved around a Calderbank offer made by one of the defendants, which proposed that the plaintiff abandon the lawsuit in exchange for a settlement amount. The plaintiff declined the offer, deeming it not a genuine attempt at compromise. The defendants, now seeking indemnity or solicitor/client costs, argued that the plaintiff should have accepted the offer. The court was tasked with determining whether the offer was clear and reasonable and whether it constituted a genuine element of compromise.

The court analysed the nature of the Calderbank offer and whether it contained a genuine attempt at compromise. It was established that the reasonableness of the offer was assessed at the time it was made, and the court considered the plaintiff's perspective in determining whether the offer was reasonable. The court found that the offer did not exhibit a real and genuine element of compromise as it essentially invited the plaintiff to capitulate without addressing the merits of the case. The court held that it was not unreasonable for the plaintiff to refuse the offer, given its nature as an attempt to capitulate rather than a genuine compromise.

Consequently, the court dismissed the defendants' application for indemnity or solicitor/client costs. The court held that the offer did not meet the criteria for a genuine attempt at compromise, and therefore, the plaintiff's refusal to accept the offer was justified. The court emphasised the importance of assessing the reasonableness of a Calderbank offer at the time it was made, taking into account the perspective of the party to whom the offer was directed. As a result, the defendants' application for costs was refused.