Untitled document
County Court (Chapter I Amendment No. 8) Rules 2013
S.R. No. 122/2013
TABLE OF PROVISIONS
Rule Page
1Object
2Authorising provisions
3Commencement
4Principal Rules
5Definitions
6Rule 26.02 substituted
26.02Offers of compromise generally
7Time for making, accepting etc. offer
8Time for payment
9Rule 26.07 substituted and new Rules 26.07.1 and 26.07.2 inserted
26.07Withdrawal of acceptance
26.07.1Failure to comply with accepted offer
26.07.2Multiple defendants
10Costs consequences of failure to accept
11New Rule 26.08.1 inserted
26.08.1Pre-litigation offers
12Multiple defendants
13Rule 26.10 substituted
26.10Contributor parties
14Transitional
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ENDNOTES
STATUTORY RULES 2013
S.R. No. 122/2013
County Court Act 1958
County Court (Chapter I Amendment No. 8) Rules 2013
A majority of the Judges of the County Court makes the following Rules:
1Object
The object of these Rules is to amend Chapter I of the Rules of the County Court in relation to offers of compromise.
2Authorising provisions
These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers.
3Commencement
These Rules come into operation on 7 October 2013.
4Principal Rules
In these Rules, the County Court Civil Procedure Rules 2008[1] are called the Principal Rules.
5Definitions
In Rule 26.01 of the Principal Rules insert the following definition—
"business day means a day on which the office of the Court is open as specified in Rule 3.08;".
6Rule 26.02 substituted
For Rule 26.02 of the Principal Rules substitute—
26.02Offers of compromise generally"
(1)A party may, in respect of any claim in a proceeding, serve on another party an offer of compromise on the terms specified in the offer.
(2)An offer of compromise in respect of a claim may be on terms that take into account any other claim made in the proceeding between the parties.
(3)An offer of compromise must—
(a)be in writing and prepared in accordance with Rules 27.02 to 27.04; and
(b)contain a statement to the effect that it is served in accordance with this Order.
(4)An offer of compromise must state either—
(a)that the offer is inclusive of costs; or
(b)that costs are to be paid or received, as the case may be, in addition to the offer.".
7Time for making, accepting etc. offer
(1)Rule 26.03(3.1) of the Principal Rules is revoked.
(2)For Rule 26.03(7) of the Principal Rules substitute—
"(7)Upon the acceptance of an offer of compromise that states that costs are to be paid or received in addition to the offer, then, unless the offer otherwise provides or the Court otherwise orders—
(a)such costs are to be paid or received in respect of the claim up to and including the day the offer was served;
(b)liability for any costs in respect of the claim in relation to any subsequent period shall be in the discretion of the Court; and
(c)any party to the accepted offer may apply for the taxation of the costs.".
(3)Rule 26.03(8) of the Principal Rules is revoked.
8Time for payment
In Rule 26.03.1 of the Principal Rules—
(a)for "sum of money to a plaintiff" substitute "specified sum of money to a party";
(b)for "14 days" substitute "28 days".
9Rule 26.07 substituted and new Rules 26.07.1 and 26.07.2 inserted
For Rule 26.07 of the Principal Rules substitute—
26.07Withdrawal of acceptance"
(1)A party who has accepted an offer for the payment to that party of a sum of money may withdraw the acceptance if—
(a)the sum of money is not paid—
(i)within the time provided by the offer; or
(ii)where no time is specified by the offer, within 28 days after acceptance of the offer; and
(b)the Court, on the application of the party who accepted the offer, gives leave.
(2)A party seeking the leave of the Court under paragraph (1)(b) may also seek orders—
(a)to restore the parties as nearly as practicable to each party's position in the proceeding at the time of acceptance; and
(b)as to the further conduct of the proceeding.
26.07.1Failure to comply with accepted offer
If, after acceptance of an offer of compromise, a party to the accepted offer defaults in complying with that party's obligations under the offer, any non-defaulting party to the accepted offer may apply to the Court for an order—
(a)giving effect to the accepted offer;
(b)staying or dismissing the proceeding if the plaintiff is in default;
(c)striking out the defendant's defence if the defendant is in default; or
(d)that a claim, not the subject of the offer, shall proceed.
26.07.2Multiple defendants
(1)Rule 26.07.1 does not apply if—
(a)two or more defendants are alleged to be jointly, or jointly and severally, liable to the plaintiff for a debt or damages; and
(b)rights of contribution or indemnity appear to exist between the defendants.
(2)Notwithstanding paragraph (1), Rule 26.07.1 applies if—
(a)in the case of an offer made by the plaintiff, the offer—
(i)is made to all defendants; and
(ii)is an offer to compromise the claim against all of them; or
(b)in the case of an offer made to the plaintiff—
(i)the offer is to compromise the claim against all defendants; and
(ii)if the offer is made by two or more defendants, those defendants offer to be jointly, or jointly and severally, liable to the plaintiff for the whole amount of the offer.".
10Costs consequences of failure to accept
(1)For Rule 26.08(2)(b) of the Principal Rules substitute—
"(b)in the case of any other claim of the plaintiff, to an order against the defendant for the plaintiff's costs in respect of the claim before 11.00 a.m. on the second business day after the offer was served, taxed on a party and party basis and for the plaintiff's costs thereafter taxed on an indemnity basis.".
(2)For Rule 26.08(3)(a) of the Principal Rules substitute—
"(a)the plaintiff shall be entitled to an order against the defendant for the plaintiff's costs in respect of the claim before 11.00 a.m. on the second business day after the offer was served, taxed on a party and party basis; and".
(3)For Rule 26.08(4) of the Principal Rules substitute—
"(4)Where an offer of compromise is made by a defendant and the plaintiff unreasonably fails to accept the offer and the claim to which the offer relates is dismissed or judgment on the claim is entered in favour of the defendant, then unless the Court otherwise orders—
(a)the defendant shall be entitled to an order against the plaintiff for the defendant's costs in respect of the claim until 11.00 a.m. on the second business day after the offer was made, taxed on a party and party basis; and
(b)the defendant shall be entitled to an order against the plaintiff in respect of the defendant's costs after the time referred to in paragraph (a) taxed on an indemnity basis.".
11New Rule 26.08.1 inserted
After Rule 26.08 of the Principal Rules insert—
26.08.1Pre-litigation offers"
(1)If—
(a)a party, before a proceeding has commenced, has made an offer in writing to another party (whether or not expressed to be without prejudice) to compromise any claim made in the proceeding on the terms specified in the offer;
(b)the offer was open to be accepted for a reasonable time, but was not accepted; and
(c)the offeror obtains an order or judgment in respect of the claim no less favourable to the offeror than the terms of the offer—
the Court shall take those matters into account in determining what order for costs to make in respect of the costs of the proceeding.
(2)In exercising its discretion as to costs in accordance with paragraph (1), the Court may order that the offeree pay all or part of the offeror's costs of the proceeding taxed on a basis other than a party and party basis, from—
(a)the day the offer was made;
(b)the commencement of the proceeding; or
(c)any other time that the Court thinks fit.".
12Multiple defendants
Rule 26.09 of the Principal Rules is revoked.
13Rule 26.10 substituted
For Rule 26.10 of the Principal Rules substitute—
26.10Contributor parties"
(1)If two or more parties (the contributor parties) may be held liable to contribute towards an amount of debt or damages that may be recovered from the contributor parties, any of those contributor parties may, without prejudice to that contributor party's defence, make an offer to another contributor party, to contribute, to a specified extent, to the amount of the debt or damages.
(2)If an offer is made by a contributor party (the first contributor party) and not accepted by another contributor party, and the first contributor party obtains a judgment against the other contributor party more favourable than the terms of the offer, then, unless the Court otherwise orders, the first contributor party is entitled to an order that the contributor party who did not accept the offer pay the costs incurred by the first contributor party—
(a)before 11.00 a.m. on the second business day after the offer was served—on a party and party basis; and
(b)after the time referred to in paragraph (a)—on an indemnity
basis.".
14Transitional
At the end of Rule 26.11 of the Principal Rules insert—
"(2)This Order as in force immediately before the commencement of the County Court (Chapter I Amendment No. 8) Rules 2013 continues to apply to any offer of compromise served under Part 2 of this Order before that commencement.".
Dated: 20 September 2013
| M. ROZENES, Chief Judge | J. A. SMALLWOOD |
| C. D. DOUGLAS | S. M. COHEN |
| G. R. ANDERSON | M. E. SEXTON |
| J. R. BOWMAN | F. E. HOGAN |
| J. A. NICHOLSON | I. E. LAWSON |
| G. G. HICKS | E. M. GAYNOR |
| P. J. COISH | P. M. TAFT |
| J. A. CAMPTON | F. SACCARDO |
| W. A. WILMOTH | M. A. GAMBLE |
| S. S. DAVIS | H. T. MASON |
| F. P. HAMPEL | G. P. MULLALY |
| J. G. MORRISH | K. E. KINGS |
| D. A. PARSONS | J. L. PARRISH |
| S. E. PULLEN | R. J. H. MAIDMENT |
| A. J. HOWARD | B. A. COTTERELL |
| L. A. HANNAN | M. F. MACNAMARA |
| M. D. MURPHY | W. E. STUART |
| M. E. KENNEDY | D. G. BROOKES |
| C. M. O'NEILL | J. A. JORDAN |
| K. L. BOURKE | P. J. COSGRAVE |
| P. M. E. WISCHUSEN | G. T. CANNON |
| F. R. GUCCIARDO |
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ENDNOTES
[1]
Rule 4: S.R. No. 148/2008. Reprint No. 1 as at 7 November 2012. Reprinted to S.R. No. 104/2012. Subsequently amended by
S.R. Nos 85/2012, 166/2012, 167/2012, 36/2013 and 69/2013.
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