The appellant challenged an order for costs against him. He had begun defamation proceedings which were settled upon the terms of an offer without prejudice as to costs. The plaintiff was ordered to pay the defendant’s substantial costs incurred during a six-month period, after a large payment into court had been made and before it was accepted whilst a suitable form of undertaking was being considered. It was the basic contention of the unsuccessful plaintiff there that ‘in all circumstances it is incumbent upon the defendant seeking protection as to costs to make an unambiguous and unequivocal offer in terms capable of instant acceptance.’
Held: (Simon Brown LJ) ‘I would reject that contention. It involves, to my mind, an altogether too mechanistic approach to the issue of costs and is in any event irreconcilable with this court’s judgment in Roache. If the argument were sound the plaintiff would be free to ignore an express offer to negotiate an appropriate undertaking and be entitled to litigate on at the defendant’s expense until the undertaking came to be in a form which he was prepared to accept. Roache itself, in my judgment, demonstrates this to be wrong. There no offer whatever of an undertaking was made, indeed the application for an injunction was resisted, and yet an injunction having in fact then been granted, the defendants were nevertheless adjudged to have been the substantial winners. The real reason, as this court found, why the plaintiff there had fought on was to try to obtain greater damages than were on offer. In that he failed. That, French J found, was the substantial reason why this plaintiff too was prolonging these proceedings after the payment in.’
Simon Brown LJ
 EWCA Civ 2509
England and Wales
Cited – Roache v News Group Newspapers Ltd CA 23-Nov-1992
In his libel action the plaintiff was awarded andpound;50,000 damages. The same sum had been paid into court, but he obtained additionally an injunction against further publication of the libel and on that account was awarded his costs by the judge . .
Cited – Jill Louise Butcher v Timothy Edward Wolfe and John Robert Wolfe CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
These lists may be incomplete.
Updated: 23 April 2021; Ref: scu.142907