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RULE 20A
OFFERS TO SETTLE

Analysis



Where Available

20A.01.  A party may serve upon an adverse party an offer to settle (Form 20A(A)) any claim between them in the proceeding and, where there is more than one claim between them, to settle one or more of them, on the terms therein specified.

165/94 s2

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Time for Making Offer

20A.02.  An offer to settle may be made at any time before the commencement of the trial or hearing; but, where an offer to settle is made less than seven days before the day on which the trial or hearing is commenced, the cost consequences prescribed by this rule shall not apply unless the offer to settle is accepted before the commencement of the trial or hearing.

165/94 s2

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When Offer to Settle may be Revoked

20A.03.   (1) A party may revoke an offer to settle at any time before acceptance by serving upon the party to whom the offer was made a notice of revocation (Form 20A( B)).

             (2)  Where an offer to settle stipulates a time for acceptance and is not accepted within that time, it shall be deemed to have been revoked.

             (3)  The cost consequences prescribed by this rule shall not apply to an offer to settle that has not been accepted and which has been revoked before the commencement of the trial or hearing.

             (4)  A revocation of an offer to settle shall only be effective if it is personally received by the party to whom the offer was made or by that party's solicitor before it has been accepted.

165/94 s2

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Effect of Offer

20A.04.   (1) An offer to settle shall be deemed to be an offer of compromise made without prejudice, and shall not be taken as an admission of liability, unless the offer to settle provides otherwise.

             (2)  A statement of the fact that an offer to settle has been made shall not be contained in the pleadings, and a communication of that fact shall not be made to the Court on the trial or hearing of the proceeding until after all of the questions of liability and the relief to be granted have been decided.

165/94 s2

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Acceptance of Offer

20A.05.   (1) Where an offer to settle has been served, the party to whom the offer is made may accept it by serving notice of acceptance (Form 20A(C)) on the party who made the offer.

             (2)  An acceptance of an offer to settle shall only be effective and binding if it is personally received by the party who made the offer or by that party's solicitor before it has been revoked.

165/94 s2

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Time for Acceptance

20A.06.  Notice of acceptance may be delivered at any time before the commencement of the trial or hearing unless, in the meantime, the offer has been revoked.

165/94 s2

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Effect of Acceptance

20A.07.   (1) Where a party to an accepted offer to settle fails to comply with the terms thereof, the other party may, subject to the provisions of paragraph (2), apply to the Court

             (a)  for judgment in terms of the accepted offer, or

             (b)  where the defaulting party is a plaintiff, to have his proceeding dismissed or, where the defaulting party is a defendant, to have his defence to the proceeding struck out.

             (2)  Where the accepted offer to settle is the settlement or compromise of a claim made by or on behalf of a person under disability, the provisions of paragraph (1) shall not apply until the settlement or compromise has been approved as provided in rule 8.07.

             (3)  Where the accepted offer is silent as to costs, and the offer was made by the defendant and accepted by the plaintiff, the plaintiff may tax the party and party costs of the proceeding to the date when he was served with the offer to settle and, unless the defendant pays those costs within seven days after assessment, issue execution therefore.

             (4)  Where the accepted offer is silent as to costs, and the offer was made by the plaintiff and accepted by the defendant, the plaintiff may tax his party and party costs of the proceeding to the date he was served with the notice of acceptance and, unless the defendant pays those costs within seven days after assessment, issue execution therefore.

165/94 s2

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Effect of Failure to Accept

20A.08.  (1) Unless ordered otherwise, when

             (a)  an offer to settle was made by a plaintiff

                      (i)  at least 7 days before commencement of the trial or hearing of the proceeding, and

                     (ii)  was not revoked or accepted prior to commencement of the trial or hearing,

and

             (b)  where that plaintiff obtains a judgment as favourable or more favourable than the terms of the offer to settle,

that plaintiff shall be entitled to party and party costs plus taxed disbursements to the date of service of the offer to settle and thereafter to double party and party costs plus taxed disbursements.

             (2)  Unless ordered otherwise, when

             (a)  an offer to settle was made by a defendant

                      (i)  at least 7 days before the commencement of the trial or hearing of the proceeding, and

                     (ii)  was not revoked or accepted prior to commencement of the trial or hearing,

and

             (b)  where the plaintiff obtains a judgment no more favourable than the terms of the offer to settle,

the plaintiff shall be entitled to party and party costs plus taxed disbursements to the date of service of the offer to settle, and the defendant shall be entitled to party and party costs plus taxed disbursements from the date of service of the offer to settle.

          (2.1)  Unless ordered otherwise, when

             (a)  an offer to settle was made by a defendant

                      (i)  at least 7 days before the commencement of the trial or hearing of the proceeding, and

                     (ii)  was not revoked or accepted prior to commencement of the trial or hearing,

and

             (b)  where the plaintiffs claim is dismissed,

the defendant shall be entitled to party and party costs plus taxed disbursements to the date of service of the offer to settle and thereafter to double party and party costs plus taxed disbursements.

          (2.2)  If a plaintiff or defendant is awarded costs after judgment under a column of the Scale of Costs pursuant to rule 55.04, the judge shall not change the column if it is later determined that paragraphs (1), (2) or (2.1) apply.

             (3)  If after a trial or hearing

             (a)  an offer to settle had been made and not revoked or accepted prior to commencement of the trial or hearing; and

             (b) an application for a determination as to costs based on the application of Rule 20A is made by a party within 15 days following the filing or delivery of the decision or order

the decision of a judge with respect to costs shall be suspended pending determination of the application in clause (b).

             (4)  A determination as to costs resulting from an application pursuant to paragraph (3) shall, to the extent determined by the judge, replace and be deemed to have replaced a determination made by the judge as to costs in the original decision or order.

             (5)  In place of an application pursuant to paragraph (3), the parties may settle the issue of costs on a basis different from that stipulated in the original decision or order by filing, within 15 days following the filing or delivery of the decision or order, a consent in writing as to the manner of disposition of costs.

             (6)  [Rep. by 26/15 s1]

88/12 s2; 26/15 s1

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Multiple Defendants

20A.09.  Where there are two or more defendants, the plaintiff may offer to settle with any defendant and any defendant may offer to settle with the plaintiff, but where the defendants are alleged to be jointly, or jointly and severally liable to the plaintiff in respect of a claim and rights of contribution or indemnity may exist between the defendants, the costs consequences prescribed by rule 20A.08 shall not apply to an offer to settle unless,

             (a)  in the case of an offer made by the plaintiff, the offer is made to all the defendants, and is an offer to settle the claim against all the defendants, or

             (b)  in the case of an offer made to the plaintiff,

                      (i )  the offer is an offer to settle the plaintiff's claim against all the defendants and to pay the costs of any defendant who does not join in making the offer; or

                     (ii)  the offer is made by all the defendants and is an offer to settle the claim against all the defendants, and, by the terms of the offer, they are made jointly and severally liable to the plaintiff for the whole amount of the offer.

165/94 s2

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Discretion of Court

20A.10.  Notwithstanding the provisions of this rule, the court, in exercising its discretion as to costs, may take into account any offer to settle made in writing, the date the offer to settle was served, the terms thereof and any other relevant matters.

165/94 s2

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Offer to Contribute

20A.11.   (1) Where two or more defendants are alleged to be jointly, or jointly and severally liable to the plaintiff in respect of a claim, any defendant may make to any other defendant an offer to contribute (Form 20A(D) toward a settlement of the claim.

             (2)  The court may take an offer to contribute into account in determining whether another defendant should be ordered,

             (a)  to pay the costs of the defendant who made the offer, or

             (b)  to indemnify the defendant who made the offer for any costs he or she is liable to pay the plaintiff,

or to do both.

             (3)  Rules 20A.03, 20A.04 and 20A.10 apply to an offer to contribute as if it were an offer to settle.

165/94 s2

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Application to Counterclaims, Cross-Claims or Third Party Claims

20A.12.  This rule applies, with any necessary modification, to a counterclaim, or third party claim.

165/94 s2