139 / 462
g a z e t t e
a p r i l 199 1
" I t i s common practice fo ra n
offer to be made by one party t o
another o f a certain apportion-
ment. I f that i sno taccepted n o
reference i smade t othat offer in
the course o fthe hearing until i t
comes t ocosts, and then i f th e
court's apportionment i s a s
favourable t o th e party wh o
made th eoffer a s what wa s
offered, o r more favourable t o
him, then costs will b eawarded
on the same basis as if there had
been a payment in. "
Thus emerges the adaptation t o
the words "wi t hout prejudice
save
as to costs".
Th e suggestion o f
Cairns L.J .ha sbeen adopted i n
many matrimonial cases
513
but, a s
the subsequent decisions show, i t
is no tlimited t o such cases. Th e
first indication o ffurther extension
came i na dictum o fMegarry V.-C.
in
Computer Machinery Co. Ltd. -v-
Drescher
52
(1983) when h esaid:
"Whether a n offer i s made
"without prejudice" o r "without
prejudice save as t ocosts", th e
courts ought t o enforce th e
terms o nwhich th eoffer wa s
made a stending t o encourage
compromise and shorten litiga-
tion; and the latter form o foffer
has th e added advantage o f
preventing th eoffer from being
inadmissible o ncosts, thereby
assisting th e court towards
justice i nmaking the order as t o
costs".
The question o fadmissibility fo r
a limited purpose, i.e . costs, came
up fo rmore detailed consideration
in
Cutts -v- Head
(1984).
53
This
case concerned the plaintiff's right
of access t o hi sfishery over th e
defendant's lands. Th e plaintiff
"Thus emerges the adaptation
to the words "without prejudice
save as to costs' "
as successful i n hi sclaim bu tth e
trial judge declined t oexamine th e
offer o f compromise made b y th e
plaintiff when th ecourt came t o
consider the question o fcosts. The
plaintiff was not awarded full costs
and, o n appeal, argued that th e
judge ha derred i n no texamining
the offer made when i t came t othe
issue o fcosts. Oliver L.J. supported
the modification contended by the
plaintiff an dstated that such a
modification did not offend against
the public policy served b y th e
"w i t hout prejudice" protection:
" A s a practical matter, a
consciousness o f a risk a st o
costs i f reasonable offers ar e
refused ca n only encourage
settlement, whilst, on the other
hand, i t i s hard t o imagine
anything more calculated t o
encourage obstinacy and unrea-
sonableness than th ecomfort-
able knowledge that a litigant
can refuse w i t h impun i ty
whatever may be offered t o him
even if i t is as much o rmore than
everything t o wh i ch h e i s
entitled".
This acceptance was subject t o
a proviso, however, that in the case
of simple money claims, such a
qualification o fthe term "wi t hout
prejudice", should not operate as a
substitute fo r th e payment o f
money into court b yth eofferor:
"The qualification imposed o n
the without prejudice nature o f
S A D S I B A L L
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