In Stocking v Montila – Butterworths Law Direct 26.1.07 the Defendant submitted that the court should order the Claimant to pay certain costs of the matter since he had materially beaten an offer he had made to the Claimant in May 2003.

It was held that, in having regard to a previous offer, the court would normally deny an order for costs to the party who declined to accept it and then failed to beat it at trial, but that would not always be so. The real question was whether the offer was one which he ‘ought clearly to have accepted’. Applying that principle, the court decided that in the circumstances of the instant case, the offer relied on by the Defendant in the course of the litigation had not been one which the Claimant ‘ought clearly to have accepted’, with the result that there was no reason for the court to depart from its provisional conclusion that the just order was no order as to costs.