Irving v Jones Lang LaSalle Australia Limited and another

Industrial Relations Commission (NSW)|2007-04-26|Before: Backman J, Mr P

CITATION: Irving v Jones Lang LaSalle Australia Limited and another (No. 3) [2007] NSWIRComm 194

Applicant: Oliver Desmond Irving

PARTIES: First respondent: Jones Lang LaSalle Australia Limited

Unfair contract - s 106 of the Industrial Relations Act 1996 - costs - Calderbank offer - held: applicant's rejection of respondents' offer to settle proceedings not reasonable - other considerations applicable to the Court's general discretion to award costs - applicant ordered to pay respondents' costs from date after Calderbank offer rejected on a party and party basis. CATCHWORDS: Costs - Calderbank offer - held: applicant's rejection of respondents' offer to settle proceedings not reasonable - other considerations applicable to the Court's general discretion to award costs - applicant ordered to pay respondents' costs from date after Calderbank offer rejected on a party and party basis.

LEGISLATION CITED: Industrial Relations Act 1996

Ballard v Incoll Management (No 2) [2001] NSWIRComm 217 Bell & Berg v Macquarie Bank Limited and Anor [2003] NSWIRComm 21 Burgess & Ors v Mount Thorley Operations Pty Limited [2003] NSWIRComm 22 Hilton Nursing Home Pty Ltd v Maciver (2000) 102 IR 335 Hollingsworth v Commissioner of Police (2007) 160 IR 456 CASES CITED: Irving v Jones Lang LaSalle Australia Limited and another [2006] NSWIRComm 305 Irving v Jones Lang LaSalle Australia Limited and another (No. 2) [2007] NSWIRComm 87 Jones v Bradley (No.2) [2003] NSWCA 258 Leichhardt Municipal Council v Kevin Anthony Green [2004] NSWCA 341 MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425

HEARING DATES: Written submissions: 26 April 2007, 04 May 2007, 15 May 2007.

Applicant: Mr P M Kite, SC Solicitors: Henry Davis York LEGAL REPRESENTATIVES: Respondents: Mr A R Moses of counsel Solicitors: Hunt & Hunt

IRVING v JONES LANG LASALLE AUSTRALIA LIMITED AND ANOTHER (NO. 3)

Application under s 106 of the Industrial Relations Act 1996

1 On 21 September 2006 judgment was delivered in this matter granting relief by way of monetary orders to the applicant in proceedings under s 106 of the Industrial Relations Act 1996 (the Act): Irving v Jones Lang LaSalle Australia Limited and another [2006] NSWIRComm 305. Following judgment the parties applied to the Court for it to determine issues of quantification of various amounts which the respondents were ordered to pay. These issues, save for the issue of costs, were determined and judgment given on 12 April 2007: Irving v Jones Lang LaSalle Australia Limited and another (No. 2) [2007] NSWIRComm 87. 2 The parties agreed to address the outstanding issue of costs in written submissions following publication of the later judgment. This judgment deals with the issue of costs. 3 The respondents seek an order that they pay the applicant's costs in respect of the claim under s 106 of the Act up to and including the day on which an offer to settle the proceedings by way of a Calderbank letter was made, assessed on a party and party basis, and, the applicant pay the respondents' costs in respect of the claim thereafter, assessed on an indemnity basis. The applicant opposes the making of the order on a number of bases which will be reviewed shortly. 4 The order made by the Court in the judgment of 21 September 2006 with respect to costs was that, "the respondents shall pay the applicant's costs of the proceedings in an amount as agreed or assessed". 5 A preliminary issue raised by the applicant relies upon the proposition that the Court has no power to grant the orders sought by the respondents: see Hollingsworth v Commissioner of Police (2007) 160 IR 456 at [35] - [39]. As a starting point, it should be observed that the effect of the respondents' application, if granted, would be to vary the Court's order (Order 6) as to costs made in the judgment of 21 September 2006. According to the applicant, the Court's orders of 21 September 2006 disposed of the proceedings subject only to any issues for which express liberty to apply was granted by the terms of Order 7. With respect to costs, the liberty to apply was limited to the amount the respondents should pay to the applicant, not for the purposes of reversing the liability for costs. 6 The applicant also submits that the slip rule cannot be validly invoked to vary the original order as to costs in the terms proposed by the respondents. The original order as to costs made in the judgment of 21 September 2006, the applicant contends, clearly manifested the Court's intention to finally dispose of the issue and there is therefore no basis for placing reliance on the rule: cf Irving v Jones Lang LaSalle (No. 2) at [24]. 7 The respondents remind the Court that it has already made a ruling that its order as to costs (Order 6) made on 21 September 2006 was not a perfected or final order and may therefore be varied. The respondents also rely on rule 172(2) of the Industrial Relations Commission Rules 1996 which they say effectively precluded the Court from being informed about any offers of compromise until such time as questions of liability and relief were determined and that this did not occur until the decision of 12 April 2007. The respondents also direct the Court's attention to rule 203(1) which provides that the Court may decide the issue of costs, "at any stage of the proceedings or after the conclusion of the proceedings". 8 In my opinion it is clear that the issues as to the final disposition of the proceedings, and whether the orders made on 21 September 2006 were perfected or final orders, were determined by the Court in the judgment of 12 April 2007. It will be necessary to illustrate this point by extracting Orders 6 and 7 made by the Court in its judgment of 21 September 2006:

The respondents shall pay the applicant's costs of the proceedings in an amount as agreed or assessed.

In the absence of any agreement as to the amounts ordered to be paid in accordance with 4, 5 and 6 above, the parties have liberty to approach. That liberty should be exercised within 28 days. 9 Order 7 in its terms applied to Orders 4, 5 and 6. The Orders sought by the respondents seek a variation or revocation of Order 6, which, if granted, would necessarily affect the amount ordered to be paid to one or both parties. As at 21 September 2006, therefore, Order 6 was not a final order: Irving v Jones Lang LaSalle (No. 2) at [21] - [24]. The parties agreed that any issues arising in relation to Order 6 following the Court's orders as to quantification of the various amounts which the respondents were ordered to pay, as set out in Order 4 of the judgment of 21 September 2006, would be addressed in written submissions. Otherwise the issues as to costs would have been approached in the judgment of 12 April 2007 in the same way as Order 4 was approached, that is, not as a final order. 10 In circumstances analogous to the present circumstances, (which raise the consequences of an offer of settlement by way of Calderbank letter in the context of an application for an order for costs), the Full Bench in Hilton Nursing Home Pty Ltd v Maciver (2000) 102 IR 335 determined the correct approach to be adopted which this Court is bound to follow. The judgment concerned a decision at first instance, in which the applicant was ordered to prepare and provide to the respondent draft orders, including an order for costs in favour of the applicant. In a supplementary judgment following the parties' inability to agree on appropriate orders, Schmidt J made an order that the appellant (Hilton) pay the respondents' costs as agreed or assessed. In a third judgment the order as to costs made in the supplementary judgment was confirmed. Following the third judgment Hilton requested the Court to make orders in accordance with the rules dealing with offers of compromise which Hilton had made to the respondents. In a fourth judgment her Honour refused to deal with the offers of compromise on the bases that costs orders had been made at the request of the applicant (Maciver); the application had not been opposed by Hilton; and, that the proper course, had Hilton wished to pursue its offers of compromise, would have been to oppose the making of any costs order. Accordingly her Honour found that she was functus officio. In finding that her Honour's approach was incorrect, the Full Bench said (at [26]):-

[26] It may have been that from 14 December 1999, when the issue of an offer of compromise surfaced as an issue, Hilton Nursing Home should have placed more emphasis on reserving its position and on ensuring the question of costs remained open. However, Hilton Nursing Home was entitled to know, with certainty, the extent of its liability arising out of any orders Schmidt J might make. That was not known until her Honour had made the orders on 20 April 2000. Hilton Nursing Home had reserved the issue of its offer of compromise pending any orders and this was by consent of the parties. Once the extent of its liability became clear, Hilton Nursing Home was then entitled to raise its offer of compromise and the implications that that had for costs in the matter. Her Honour was not relevantly functus officio. Accordingly, we remit this matter to Schmidt J for determination. 11 As to the Court's power to invoke the slip rule in order to correct or set aside orders that have been made, I adopt my earlier reasons and findings in my judgment of 12 April 2007 at [20] where I found that the slip rule may be invoked to correct or set aside the order made in relation to the current market value of the applicant's shares. In the present circumstances the slip rule may also be validly invoked (if it be necessary) to correct or set aside Order 6, that is the order as to costs made in the judgment of 21 September 2006. The Calderbank offer

12 The respondents first made an offer of further payment, consequent upon the applicant's termination of employment on 25 October 2001, in a "without prejudice" letter sent by the lawyers acting on behalf of the respondents. The applicant has made lengthy written submissions in relation to this correspondence, submitting ultimately that its contents, which included a draft deed of release, have no relevance to costs issues in the present proceedings. It is not necessary for me to decide this present point since the respondents do not seek a costs order from 25 October 2001 and emphasise that the relevance of the correspondence is limited to counter any assertion on the applicant's part that the respondents have been unreasonable in the conduct of the proceedings. The offer set out in the correspondence of 25 October 2001 (which the applicant declined) demonstrates, say the respondents, that they were prepared to make a reasonable offer of compromise at an early stage. 13 The respondents submit that the relevant date for any order the Court may make in the respondents' favour should be 13 February 2002, which is the date on which the respondents' solicitor, David Lee-Young made an offer of settlement during a telephone conversation with the applicant. In the alternative the respondents submit that the relevant date should be 11 March 2002 when a letter was sent to the applicant setting out the terms of a proposed settlement offer. The letter was expressed to be "without prejudice save as to costs" (the Calderbank offer). 14 In my view the relevant date upon which to embark on a consideration of the appropriate costs order in the context of an offer to settle the proceedings by way of a Calderbank offer is 11 March 2002. According to an affidavit sworn by Mr Lee-Young on 4 May 2007 the context in which the offer of 15 February 2002 was made was during a telephone conversation in which the applicant is alleged to have advised Mr Lee-Young that the conversation was, "...off the record and without prejudice..."; and, Mr Lee-Young is alleged to have put the offer of settlement to the applicant on a "...without prejudice" basis but with no mention of any reservation of rights in relation to referring to the details of the conversation on the issue of costs. By contrast, the letter of 11 March 2002 is headed "without prejudice save as to costs". At the foot of the letter there appear words of further qualification, namely: "[T]his is a Calderbank letter and will be relied upon in relation to the question of costs". The letter also sets out the offer in clear and precise terms. The contents of the letter therefore conform generally to what may be described as a "Calderbank offer" being a formal offer to settle the proceedings and containing a qualification as to the reservation of any rights to disclose the details of the offer to a court in the context of the question of costs: see also Ballard v Incoll Management (No 2) [2001] NSWIRComm 217 per Boland J at [9] - [10]. 15 The Calderbank offer set out in the letter of 11 March 2002 was for an amount considerably more than the result achieved by the applicant in the proceedings. It may be useful at this point to briefly review the history of the matter from the date of the applicant's termination of employment in order to properly understand the basis upon which the parties contend they are entitled to their costs:

(i) On 16 October 2001, the applicant's employment was terminated.

(ii) On 16 November 2001, the applicant filed a summons for relief under s 106 of the Act.

(iii) On 11 March 2002, the respondents offered to settle the proceedings by way of a "Calderbank letter" dated 11 March, 2002, in an amount of $325,473 which included an amount for costs in the sum of $2,500. The offer was expressed to be open for acceptance until 18 March 2002. The applicant did not respond to the offer within the required time.

(iv) On 21 September 2006, the Court gave a judgment in favour of the applicant under s 106 of the Act.

(v) On 12 April 2007, the Court gave a second judgment which quantified the amounts the respondent were ordered to pay. According to the respondents' calculations, this amount was $125,784 plus interest. 16 The relevance of Calderbank type offers to the Court's general discretion to award costs was adverted to by the Court of Appeal in Leichhardt Municipal Council v Kevin Anthony Green [2004] NSWCA 341 per Santow JA (with whom Bryson JA and Stein JA agreed) at [47]:

[47] The conclusion that indemnity costs should not be viewed as a necessary or automatic consequence of not accepting a defendants offer does not in any way deny the general discretionary power of the Court regarding costs in such circumstances. It merely recognizes that, influenced but not bound by the rules, a Court will be reticent to award such indemnity costs following defendant offers of settlement. It cannot be forgotten that the power to award indemnity costs is within the Court's general discretion in any event (see s 148AB District Court Act 1973, s 76(1)(c) Supreme Court Act 1970). It is preferable to consider applications for indemnity costs following unaccepted offers of compromise by defendants as being applications for a favourable exercise of the Court's general discretion to award indemnity costs. As far as Calderbank offers go there is very little difference, the costs consequences of these lying entirely within the Court's general inherent discretion on costs. Nothing said in GIO General Ltd v ABB Installation & Service Pty Ltd (supra) derogates from this conclusion. The Court there merely held that the trial judge's discretion not to award indemnity costs was not appellably erroneous. The decisions of Dunford J in Bishop (supra) and McKerlie (supra) can be regarded likewise. The authorities (especially Jones v Bradley ) emphasise the width of the discretion and the unusual nature of an award of indemnity costs in relation to Calderbank letters. 17 In Jones v Bradley (No.2) [2003] NSWCA 258 the Court of Appeal referred to two lines of authority on the question of what effect a Calderbank offer has on a court's discretion to award costs (at [6]). The first line of authority is illustrated in Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 per Rolfe J who said (at 451):

[T]he proper approach to take to an offer of compromise ... or pursuant to a Calderbank letter, is that there should be a prima facie presumption in the event of the offer not being accepted and in the event of the recipient of the offer not receiving a result more favourable than the offer, that the party rejecting the offer should pay the costs of the other party on an indemnity basis from the date of the making of the offer. 18 Leichhardt Municipal Council v Green illustrates the second line of authority which according to Jones v Bradley (No.2) (at [7]) rejects the "prima facie presumption" approach in Multicon, emphasising instead that the mere making of a Calderbank offer and its rejection will not "automatically lead" to the making of an order for payment of costs on an indemnity basis: see also MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236 at 239; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37]. 19 In Jones v Bradley (No.2), the Court of Appeal commented (at [9]) that the difference between the two lines of authority may be "more apparent than real", as in either approach the Court must consider all the circumstances of the case. The Court of Appeal also considered that the approach adopted in the second line of authority to the relevance of Calderbank offers and the general discretion as to costs is correct and should be preferred (at [9]). 20 In this jurisdiction the approach reflected in the first line of authority appears to be the preferred approach: Ballard v Incoll Management (No.2) at [17]; Bell & Berg v Macquarie Bank Limited and Anor [2003] NSWIRComm 21 at [20]; Burgess & Ors v Mount Thorley Operations Pty Limited [2003] NSWIRComm 22 at [59]. For reasons of comity I intend to adopt the same approach. This approach has been conveniently summarised by Boland J in Ballard v Incoll at [17], [18] as follows:

[T]here is a prima facie presumption that an order for indemnity [in this case, party and party] costs should be made if an offer of settlement was made, rejected and not bettered in litigation, unless the party rejecting the offer establishes that it was reasonable for it not to accept the offer. The exercise of judicial discretion with respect to costs, however, depends upon a consideration of the particular facts and circumstances.

[18] Clearly in this case a genuine offer of settlement was made, rejected and not bettered in litigation. The onus, therefore, falls on the applicant to establish that it was reasonable for him not to accept the offer. On the question of costs the applicant was represented in person and he was unable to express any relevant basis as to why it was reasonable for him not to accept the offer. He did refer to the respondent having prolonged the proceedings by changing the basis of its opposition but there is no substance in this contention. 21 I have no reason to doubt that the respondents' offer, set out in the letter of 11 March 2002, was a genuine offer of settlement. Certainly, the applicant has not suggested otherwise in his submissions. The applicant relies on two primary submissions as to why he says the Court should not make the orders as to costs in the terms proposed by the respondents. First, the applicant relies on the limited scope of the terms of the Calderbank offer which he says only included monetary payments in respect of salary, bonus, shares and costs but made no offer to release him from the restraint clause in Clause 8, Schedule A of his Senior Executive Service Agreement (SESA). It will be recalled that the restraint clause prevented the applicant for a period up to 12 months after his employment was terminated from engaging in, or being concerned in any capacity in any business within a specified geographical location that was in competition with the respondents' business and in which the applicant had been involved to a material extent. According to the applicant, the restraint was a severe if not total barrier to the applicant's capacity to pursue work in his chosen profession for 12 months following 17 October 2001. The Calderbank offer was made in or about the middle of that period. Had the applicant accepted the offer, he says he would have remained subject to exposure to potential litigation by the respondents in the event he acted contrary to the terms of the restraint. It was therefore not unreasonable for the applicant to reject an offer that did not include his release from the restraint clause, even though the monetary value of the Calderbank offer exceeded the monetary value of the Court's orders. 22 The respondents rely on the absence of any suggestion in the material before the Court that the applicant would have settled on the terms set out in the Calderbank offer, in any event, if that offer had included a release from, or waiver of, the restraint clause. The applicant in fact made no offer or counter-offer to settle the proceedings until some 10 months after the Calderbank offer was made. The applicant has never proposed to the respondents that the restraint clause be waived. 23 The applicant in reply has sought to emphasise that his failure to make a counter-offer (that the restraint clause be waived as a condition of acceptance of the Calderbank offer) could have no impact on the Court's discretion to award costs. The guiding principle associated with Calderbank offers is that a successful applicant should only be deprived of the benefit of a costs order if he or she has acted unreasonably in failing to accept the offer, but he should not be penalised for not making a counter-offer. Moreover, there is no evidence that the respondents would have accepted a counter-offer in terms requesting that the restraint clause be waived. 24 I do not agree with the applicant's contention that the failure to make what has been called a "counter-offer" has, in effect, no relevance to the Court's determination to make a costs order. The Court's discretion as to costs is very wide, and when considering whether or not the applicant's rejection of the Calderbank offer was reasonable it is necessary to look at all the circumstances surrounding the making of the offer: see Jones v Bradley (No.2) at [13]; Ballard v Incoll at [17]. 25 The respondents' offer was made during the period in which the restraint clause continued to operate. The Calderbank offer set out in the letter of 11 March 2002 made no mention of the restraint clause in the applicant's employment contract, SESA. There may be any number of competing hypotheses why this was so. It may simply not have occurred to the drafter of the letter to include the waiver of the restraint clause or some other related condition as part of the settlement offer, for example. No doubt the offer to settle was primarily motivated by a desire to settle on a financial amount acceptable to both parties. In my view it was not incumbent upon the respondents to, in effect, pre-empt the applicant's concerns and include in the offer of settlement a term or condition that the restraint clause would be waived, or released. In any event, as the applicant has conceded in written submissions, the Calderbank offer contained a provision for the payment of a sum representing a salary package of 9 months which, together with the payment of 6 months base salary already received as part of his termination payment, would have exceeded the period during which the restraint clause was in operation. The applicant's contention that acceptance of the Calderbank offer would have had no effect on his continued exposure to liability if he acted contrary to the terms of the restraint clause has little, if any, bearing, in my view, on whether it was reasonable for him not to have accepted the offer. 26 In Bell & Berg v Macquarie Bank the applicants had been given two days in which to consider whether to accept the terms of Calderbank offers. Schmidt J found (at [23]) that had there been evidence that the applicants had experienced difficulties in taking advice or instructions as to the terms of the offers, her Honour might have been persuaded that the applicants' failure to accept the offers was not unreasonable. Her Honour considered it relevant that the applicants had not complained at the time about the short period of time during which the offers remained open. In that regard her Honour said (at [23] [24]):

[23] In this case, had there been evidence that the making of the offers had led to any difficulty for the applicants in taking advice or giving instructions, I might have been persuaded that their failure to accept them was not unreasonable, in the relevant sense. After all, the offers were made relatively close to the trial commencing, with the applicants then residing in London and the United States, and they were only available for acceptance for two days. Any complaint about such matters at the time the offers were made, would have confirmed me in that conclusion. On any view, two days is a short period of time to consider compromise of complex litigation such as this.

[24] There was, however, no such evidence. There was no complaint at the time about the short period the offers remained open. No extension of time was ever sought. Despite the submissions advanced, there was no evidence of any difficulty, of any kind, being encountered by the applicants from the time at which the offer emerged. The applicants were sophisticated and experienced senior executives, represented in the proceedings by solicitors and counsel at all times. The proper inference from the evidence must be that no difficulties arose for the applicants as a result of the time the offers were made and how long they were open for. Rather, it must be inferred from the evidence of the amounts which the applicants had earlier been prepared to accept by way of settlement of the claims, that the rejection of the offers flowed from the assessments which the applicants then made of their prospects in the cases they were advancing. 27 Similar considerations apply to the present proceedings. There has been no evidence that the applicant when confronted by terms of the offer (which made no mention of the restraint clause) approached the respondents with a proposal that the offer may be more palatable, for example, or acceptable, if the respondents agreed to release him from the restraint clause. The applicant was a highly experienced and senior executive in the respondents' employ. He was represented by experienced lawyers at the time the offer was made. These considerations militate against the applicant and in favour of the respondents' application for indemnity costs from the day after the Calderbank offer had expired (19 March 2002). They are not, however, determinative of the issue. 28 The applicant's second submission as to why the Court should not make the orders proposed by the respondents is based on the proposition that the respondents' conduct caused unnecessary and unreasonable costs to be incurred in two areas. First the respondents' consistent refusal to give discovery of various classes of documents relating to the bonus pool available for distribution to other directors of the respondents for 2001 and 2002 and the actual bonus amounts paid to those other directors for those years. Secondly, the respondents' conduct in causing to be issued 15 very detailed notices to produce and summonses for production, which the applicant alleges generated many thousands of pages of documents requiring review. 29 In an affidavit of Stephen Jauncey, the applicant's solicitor, sworn 3 November 2003, the steps taken by the applicant to obtain documents dealing with the issue of bonus payments are set out. The first notice to produce was served on 15 May 2002 on behalf of a different applicant in unrelated proceedings. It is therefore not relevant to the Court's consideration in these proceedings as to whether the applicant's rejection of the Calderbank offer was in all the circumstances reasonable. A notice to produce in these proceedings was served on the respondents on 23 August 2002. This notice sought documents dealing with bonuses for 2001. Thereafter the affidavit annexes some correspondence between the parties in relation to the production of the documentation, although it is unclear whether any of that correspondence applied specifically to the applicant in these proceedings. Some correspondence is expressed to apply to other named applicants in other proceedings. Other correspondence is headed simply, "Marks & Ors". Correspondence dated 1 October 2002 specifically nominates the applicant in the context of receiving bonus schedules from the respondents with blacked out names, allegedly constituting part-compliance with notices to produce. A signed and undated undertaking in the applicant's name is also annexed to the affidavit. On 23 January 2003, discovery of documents was sought on the applicant's behalf. Six months later the respondents advised the applicant by letter that they would object to giving discovery of a number of the documents. This prompted the applicant, on 5 November 2003, to file a notice of motion seeking orders to compel discovery of the documents. From the Schedule attached to the notice of motion, it appears that the applicant was still seeking access to documents dealing with bonuses for 2001, the same category of documents which had been first sought by the applicant by way of the notice to produce dated 23 August 2002, that is, some 15 to 16 months before. 30 The respondents contend that the bonus documents, which dealt with the quantum of bonuses payable to other directors of the same status globally as the applicant, were irrelevant to the applicant's claim for bonus payments made in the summons filed in relation to his application under s 106 of the Act. In addition, the respondents point out that there has been no suggestion on the evidence that the absence of these documents in any way affected the applicant's decision to reject the Calderbank offer. 31 I agree that the documents sought could not have had any impact on the applicant's decision to reject the Calderbank offer. That offer closed on 18 March 2002. The notice to produce was not served until some months later on 23 August 2002. Nevertheless, in my view, the very lengthy period of time and money expended by the applicant in the pursuit of those documents which culminated in the necessity to file a notice of motion to compel production, is a relevant consideration which will be taken into account in the exercise of the Court's general discretion as to costs. 32 In relation to the 15 notices to produce and summonses for production filed and served by the respondents in the proceedings, the applicant contends first that they were of limited or no relevance; and secondly that they necessitated the production of thousands of pages of many documents; and, amounted to little more than a fishing expedition. The respondents contend that the notices to produce and summonses were necessary responses to the applicant's complicated financial structures which he had in place so that the information had to be sought from third parties and when produced provided assistance. Many of the documents were tendered in the proceedings. The respondents also rely on the fact that there was no court order setting aside the summonses which is why the documents had to be produced. 33 Apart from the submissions of the respective parties in relation to the second category of documents, I am unable, based on the material before me, to form a view as to why it was not reasonable, as the applicant suggests, for the respondents to issue the notices and summonses, and whether, in all the circumstances, the respondents' conduct in this regard is relevant to the Court's general discretion as to costs. 34 Another factor which the parties have not raised, but, which, in my view, is a relevant consideration, is that the applicant succeeded, either partially or completely, on nearly all the claims made in the summons within s 106 of the Act. In relation to the applicant's circumstances of termination and his payment in lieu of notice of six months base salary, the applicant succeeded in part. This partial success on one issue should be assessed by reference to the number of claims made in which the applicant was successful. These matters suggest that it would not be appropriate to award the respondents their costs on an indemnity basis. The consequence of making such an order would be that the party who was ultimately successful in relation to the majority of his claims and in relation to the issues which were in contest during the proceedings would be ordered to pay the majority of the costs incurred by the respondents. It is also a matter of some significance that the applicant incurred unnecessary costs in seeking the production of the bonus documents from August 2002 which was resisted by the respondents for some 15 to 16 months and which ultimately the respondents' were compelled to produce by order of the Court. 35 It remains to weigh all of the discretionary factors relied upon by the applicant in the context of the Calderbank offer which I find was a genuine offer of settlement made, rejected and not bettered in the litigation. At the time the offer was made, the applicant was represented by experienced lawyers, who, no doubt, would have advised the applicant of the risks associated with the rejection of Calderbank-type offers. No issue has been raised by the applicant that the time during which the offer remained open was unreasonable. The failure of the respondents not to include as a term or condition of the Calderbank offer, the waiver or release from the restraint clause, is not, in my view a material factor to which the Court is prepared to give weight in the exercise of discretion. The applicant did not raise with the respondents that release from the restraint clause might encourage or facilitate acceptance of the offer. In all of these circumstances the Court finds that the applicant's rejection of the Calderbank offer was not reasonable. Against these factors, and in the applicant's favour, the applicant succeeded in making out the majority of his claims under s 106 of the Act. In addition, the applicant was put to unnecessary time and expense in relation to the documentation sought from the respondents concerning bonus payments for 2001. 36 The respondents have conceded that a factor the Court may take into account in the exercise of its discretion to award costs in the context of a Calderbank offer is, that under rule 216(6) of the IRC Rules the applicant could be ordered to pay the respondents' costs as a consequence of rejecting an offer of compromise, on a party and party basis, not on an indemnity basis. I propose to make the same order in these proceedings because of the factors referred to above which I have taken into account in the applicant's favour. 37 Order 6 made by the Court on 21 September 2006 will therefore be varied to reflect the Court's findings. The orders of the Court are:

(1) Order 6 of the judgment orders made on 21 September 2006 is varied as follows:

(6) The respondents are to pay the applicant's costs up to and including 18 March 2002 on a party and party basis, and the applicant is to pay the respondents' costs on a party and party basis from 19 March 2002 in an amount as agreed or assessed.

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Cases Cited (12)

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