G'day, for mine, ISX should: 1) take some measure to protect their position re: costs, and 2) be seen to be proactive re: resolution. If they don't win the case, then an Offer of Comp/Calderbank is not going to help them. If they do win, they will be a better position to argue for indemnity costs for the backend preparation and costs of the hearing (which will be substantial), when the time comes. That's a pretty broad-brush explanation. The sme goes for ASX. They can serve an Offer of Comp if they wish and they undoubtedly will at some point (if not already).
If an offer is made, it may coax ASX to the table to discuss settlement. If ISX serve an offer reflecting what their current assessment is, then that gives ASX no incentive whatsoever. They may as well not do it. People should expect that ISX, if they win, will not be awarded anything approaching the $500M odd they're particularising. There is no incentive for ASX if ISX maintain their current bloated assessment of damages. That is pie in the sky stuff and there has to be a genuine element of real compromise to reflect all contingencies and demonstrate a willingness to resolve the matter. I doubt whether much will happen without the involvement of ASIC and I have suggested before, more than once, that in an ideal world you would try to get a tri-partite settlement conference happening, with a view to resolving all matters. That won't happen unless all are amenable to the idea and can put commercial sensibility ahead of corporate ego. Given the downside for all of them, I think it's in the interests of all parties to try and wrap it up and move forward. There is certainly a duty to do so in keeping with the overriding purpose of civil procedure litigation, which this all is. There are no criminal allegations here.
When a client says "it's about the principles of the matter", then give them an estimate of what it will cost to run the case all the way to the High Court - and possibly lose - and then you'll see the whites of the eyes. The said rusted on 'principles' change quite quickly and commercial commonsense hopefully kicks in. If people are concerned about the legal costs now, in what has been a pretty tame run insofar as Federal Court litigation is concerned (and I'm saying that for both parties not just ISX), then wait until this matter ramps up when a hearing date is allocated and a silk, possibly two juniors, and a team of instructing solicitors gear up for final preparation and what may be a three week trial.
As to an earlier query, the time to talk settlement is when the bulk of all of the evidence has been laid out and that would be post-discovery, expert reports, etc, not before. That is, the parties can make a reasonable estimate of the case, balance up the pros and cons, and talk meaningfully. Having said that, I would've hoped that the parties should have a fair idea of the lay of the land by now.
cheers
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