CHAPTER 15 – TENDERS &
SECURITY FOR COSTS
Offer or Tender to Settle in the
High Court
WRITTEN OFFER OR TENDER:
An offer or tender to settle an action or application
proceeding that has already been instituted is regulated
by HCR 34
HCR 34 provides for:
An unconditional or without prejudice written offer
or tender
Made by the defendant or authorised attorney
With the aim of settling the plaintiff’s claim
HCR 34(1) and (2) refers to:
Offer – as a payment of a sum of money
Tender – specific performance
This can be used in:
Action and application procedures
Counterclaims
HCR 13 – 3rd party procedures
2 Main Options to plaintiff when defendant gives a
written offer of a sum of money – HCR 34(1):
Option 1:
Where defendant unconditionally accepts liability
in part or whole, plaintiff may accept the written
offer
If defendant only admits partial liability, plaintiff
may accept partial offer and proceed to claim the
balance at trial
Option 2:
, When the defendant makes an offer of
compromise, without prejudice, and the plaintiff
accepts – the claim will be extinguished
Ie: the action ceases and there can be no further
recourse against the defendant
HCR 34(2):
The defendant may tender, unconditionally or
conditionally without prejudice, to perform an
obligation due to the plaintiff
Eg: transfer immovable property, deliver movable
property, ejectment, perform a service
When performance is one that need to be performed
personally by the defendant – an irrevocable power
of attorney must be executed authorising the
performance by someone else
Unconditional offer or tender VS Conditional offer or
tender without prejudice:
No reference to a conditional offer or tender without
prejudice may be disclosed to the court at any time
before judgment – may be brought to court’s
attention after judgment as long as it is relevant to
the issue of costs
Unconditional offer or tender may be brought to the
attention of the court
A court may penalise a plaintiff who has refused an
offer or tender made without prejudice (ie: an
adverse cost order / or being granted a smaller
amount than what was prayed for etc)
OTHER OFFERS OF SETTLEMENT:
HCR 34 also makes provision for other types of offers –
especially where there are several defendants or a
defendant seeks to join the action
These include:
Written offer of contribution
Written offer of indemnity
Note:
This offer is not made to the plaintiff – but is made to
the defendant who has taken steps to claim
contribution or indemnity
Offer is made by other defendant
NOTICE OF OFFER OR TENDER:
SECURITY FOR COSTS
Offer or Tender to Settle in the
High Court
WRITTEN OFFER OR TENDER:
An offer or tender to settle an action or application
proceeding that has already been instituted is regulated
by HCR 34
HCR 34 provides for:
An unconditional or without prejudice written offer
or tender
Made by the defendant or authorised attorney
With the aim of settling the plaintiff’s claim
HCR 34(1) and (2) refers to:
Offer – as a payment of a sum of money
Tender – specific performance
This can be used in:
Action and application procedures
Counterclaims
HCR 13 – 3rd party procedures
2 Main Options to plaintiff when defendant gives a
written offer of a sum of money – HCR 34(1):
Option 1:
Where defendant unconditionally accepts liability
in part or whole, plaintiff may accept the written
offer
If defendant only admits partial liability, plaintiff
may accept partial offer and proceed to claim the
balance at trial
Option 2:
, When the defendant makes an offer of
compromise, without prejudice, and the plaintiff
accepts – the claim will be extinguished
Ie: the action ceases and there can be no further
recourse against the defendant
HCR 34(2):
The defendant may tender, unconditionally or
conditionally without prejudice, to perform an
obligation due to the plaintiff
Eg: transfer immovable property, deliver movable
property, ejectment, perform a service
When performance is one that need to be performed
personally by the defendant – an irrevocable power
of attorney must be executed authorising the
performance by someone else
Unconditional offer or tender VS Conditional offer or
tender without prejudice:
No reference to a conditional offer or tender without
prejudice may be disclosed to the court at any time
before judgment – may be brought to court’s
attention after judgment as long as it is relevant to
the issue of costs
Unconditional offer or tender may be brought to the
attention of the court
A court may penalise a plaintiff who has refused an
offer or tender made without prejudice (ie: an
adverse cost order / or being granted a smaller
amount than what was prayed for etc)
OTHER OFFERS OF SETTLEMENT:
HCR 34 also makes provision for other types of offers –
especially where there are several defendants or a
defendant seeks to join the action
These include:
Written offer of contribution
Written offer of indemnity
Note:
This offer is not made to the plaintiff – but is made to
the defendant who has taken steps to claim
contribution or indemnity
Offer is made by other defendant
NOTICE OF OFFER OR TENDER:
