1. This direction applies where in proceedings under Article 40.4 of the Constitution or for judicial review a respondent furnishes to the applicant a costs offer within the meaning of paragraph 2 of this direction.

2. A costs offer, where referred to in this direction, is an offer, made in writing or electronically, and not on a 'without prejudice' basis, to discharge the costs of the proceedings, or the costs of a specified part of the proceedings, in a specified amount, and on terms that in the event that -

(a) the offer is not being accepted within the time specified in the offer and

(b) the sum measured by the court in respect of the costs concerned does not exceed the sum offered,

the respondent may seek against the applicant the costs of the proceedings subsequent to the date of expiry of the costs offer.

3. A costs offer may only be made in conjunction with or following upon an offer or undertaking by a respondent to consent to, or not to oppose, relief sought in the proceedings.

4. The amount referred to in any costs offer shall not be disclosed to the court save

(a) on an application referred to in paragraph 5 or

(b) on the court having measured the costs concerned on an application referred to in paragraph 6.

5. Where the applicant accepts the costs offer within the time specified in that offer for acceptance or such extended time as the parties may agree, the parties may apply to the court, when making any order disposing of the proceedings, for an order awarding costs in the terms of the costs offer.

6. Where -

(a) the applicant does not within the time specified in the costs offer for acceptance, or such extended time as the parties may agree, communicate to the respondent his or her acceptance of that offer and

(b) the court grants the relief sought in the proceedings,

the respondent may inform the court that a costs offer has been made to the applicant and has not been accepted and apply to the court for measurement of the costs to which the costs offer relates.

7. In the event that the court agrees to measure such costs and in the further event that the court measures those costs in an amount which does not exceed the amount specified in the costs offer, the respondent may apply to the court for an order awarding to the respondent against the applicant the costs of the proceedings subsequent to the date of expiry of the costs offer.

8. The making of an order referred to in paragraphs 5 or 7 is at the court’s discretion.

9. This direction shall come into operation on the 24th day of February 2012.

Dated this 23rd day of February 2012
Nicholas Kearns
President of the High Court