The Gazette 1991

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g a z e t t e

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

" 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

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

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