Open letter

Fdr

The starting point with costs is that each party bear their own.

However if a party makes an open offer which they later 'beat' at final hearing, that offer is deemed reasonable and the action of not accepting the offer is deemed unreasonable.

The upshot is that all work after the offer was unnecessary as the recipient of the offer should have accepted it. The penalty is that the recipient should pay the other side's costs from after the offer was made.

That's the theory but I've never seem a clear cut example and costs orders are few and far between.

So, in essence if the offer is unequitable and unfair it is not reasonable and the offer is pointless. This means that you are not at risk of a costs order.

However, can you be sure it's unfair? Applying the case law and statute, is the offer unfair? That's the concern.

Finally, the FDR is a mediation hearing and in mediation you never come to the table with your best offer. You go in offering less that you are willing to pay (or seeking more that you are willing to accept) and negotiate accordingly.

Charles