In the course of costs negotiations following settlement of liability in this clinical negligence claim the Defendant made a number of Calderbank offers, the last of which being for the sum of £440,000 on condition that if not accepted within a reasonable time, the Claimant would be responsible for the Defendant’s costs.
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Following our recent report on the case of Hossaini v EDS Recruitment Ltd in which the Employment Tribunal had wrongly considered and taken into a “Without Prejudice” (as opposed to a “Without Prejudice Save As To Costs” offer) when determining costs, the First Tier Tribunal has fallen into the same error. Upholding the appeal, Judge Elizabeth Cooke found that the offer should not have been disclosed and the decision on costs insofar as it turned on the fact of this offer could not stand.
The Employment Tribunal was wrong to consider ‘without prejudice’ correspondence in its determination of costs following dismissal of a discrimination and harassment claim.