those who refuse to learn..., page-4

abobo,

I find it hard to believe Biota had to accept a Calderbank offer that included a settlement offer that expired before all the GSK documents could be read and analysed. At the time only GSK had all the facts.

"A party which fails to observe some fundamental obligation or conducts its case in a
manifeslty unfair or unreasonable manner may be disentitled from relying upon a
Calderbank offer in relation to the question of costs. In Morris v McEwen the Supreme
Court of South Australia considered disentitling conduct in the context of a defendant
who failed to make complete discovery of all of its documents and who latter sought to
rely on a Calderbank offer. In relation to the conduct of the defendant, Debelle J
poignantly observed:
A party who does not observe an obligation as fundamental as making full
discovery of documents and the failure to do so has a material bearing on
the result cannot, in my view, have the benefits of a Calderbank offer."

www.13wentworthselbornechambers.com.au/cle/calderbankoffers.pdf

"Notwithstanding the value of a Calderbank offer, it must be appreciated however that its value is worthless if there has not been full and frank disclosure so as to enable the offeree the opportunity to make an informed decision as to the appropriateness of the offer or otherwise. I consider there is no obligation to respond with a counter offer until full and appropriate disclosure has been made. All the issues must be clear and evident in relation to the sufficiency of the offer at the time the offer is made. The value of hindsight can be a dangerous concept. What is clear and evident at the end of the case may not have been so at the time the offer was made. Professional advisors, who have a duty of care to their clients, must have available to them sufficient information on the basis of which they can give informed advice."

http://www.courtsni.gov.uk/NR/rdonlyres/12F9265A-29E3-4027-B153-6D7B723A208B/0/j_j_GILC3913.htm



Also the final offer, which Peter accepted, would have predudiced any earlier Calderbank offer because as we all know it amounted to an offer to capitulate.



"...his Honour said that an offer to settle on the basis that a party discontinue proceedings and bear its or their own costs did not amount to a genuine offer of compromise, rather, it was a proposal for capitulation....
The Court of Appeal’s decision in the Leichhardt case is however, much more far-reaching. In it, the Court has said that the issue as to whether indemnity costs should be awarded falls to be determined in accordance with the Court’s inherent costs jurisdiction alone.
The decision also has the effect of strongly discouraging any application by a defendant for indemnity costs in reliance upon a Calderbank offer except where it can be shown that a plaintiff has acted in a most unreasonable manner in not accepting the offer."
www.andrice.com.au/documents/Summer2005.pdf

""There is no point going over the past."
That's your opinion, feel free to ignore my posts.