The adverse costs consequences of failing to beat a Calderbank offer or Payment into Court: a Pyrrhic victory for a Bermuda plaintiff

In his recent judgment in the medical negligence case of Raynol Shane Todd v Dr Annamalie Chelvam [2017] SC Bda 11 Com (1 February 2017), Chief Justice Kawaley awarded the Plaintiff the sum of $5,000 in general damages for his pain and suffering following from a delayed diagnosis (the delay having been found to be no more than 10 days).

The judgment also addresses issues of costs, since it was brought to the Judge’s attention that the Defendant had made settlement offers, long in advance of trial, as well as a payment into Court, for sums far in excess of the sum that was eventually awarded to the Plaintiff.

The effect of those offers and the payment into Court (consistent with established discretionary principles) was that the Plaintiff was ordered to pay the Defendant’s legal costs since the date that they were made (and should reasonably have been accepted).

Although the actual costs figures remain to be assessed (and the details might never be published), it seems likely that they will dwarf the $5,000 damages award, with the net effect (after set-off) that the Plaintiff will probably end up owing the Defendant a very considerable amount of money.

The Plaintiff has won a purely Pyrrhic victory therefore.

The case provides a stark reminder for Plaintiffs and their lawyers that (consistent with the overriding objective and as is made clear on a daily basis by English Court judgments) they need to assess the merits (and value) of their claims realistically and with very great care, as soon as a reasonable settlement offer has been made (if they have not done so already …)

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