Pre Litigation Negotiations; Cost Penalty

October 30th, 2015

In June 2013, in the matter of Ion v Harmer 2013 WADC 100, a Judge of the District Court was requested by the Insurance Commission to apply the Commissions policy which was said to be as follows;

4. Where it appears that the claimant’s medical condition has stabilised to the extent that settlement can be considered, the Insurance Commission will invite a submission towards settlement, to include;

(a) full particulars of the heads of damage including, in respect of any pecuniary loss, the quantification of such loss;

(b) full disclosure of documents relating to pecuniary and nonpecuniary loss including;

(i) medical reports;

(ii) documentary proof of special damages;

(iii) in the case of a claim for loss of earning capacity, documentary proof of pre and post accident earnings;

(iv) documents and evidence and loss of earnings, gratuitous services, costs of future treatment etc.

5. In any event the Insurance Commission expects that a legal practitioner will not in ordinary circumstances, commence proceedings for damages before providing a submission in the above form.

6. Within 28 days of receiving a submission the Insurance Commission will make an offer of settlement, or alternatively advise of any reason of delay in so doing.

The allegation was that the plaintiff unnecessarily and or unreasonably incurred costs and disbursements by failing to utilise the pre-writ opportunity for settlement afforded by the ‘policy’.

The court agreed that the policy was not followed but was “unconvinced that it would have made any difference if the plaintiff had made such a submission”. ¬†

An earlier decision on similar facts was not followed; Pihler v Genidi 2001 WADC 74