Important Update to the Rules of the Superior Courts regarding Lodgments and Tenders

Lodgments, Tenders and Calderbank offers continue to be the one of the most important tools available to Defendants in litigation. Although each of the above tools work differently, they all have the effect of putting the Plaintiff under pressure in respect of legal costs. A recent change to the Rules of the Superior Courts has further broadened the ability for a Defendant to make a Tender/Lodgment.

Old Rules

Prior to the new rules being enacted, a Defendant could make a Lodgment/Tender at a specific time in legal proceedings and in the absence of that leave of the Court may be required. The specific times were;

• With Defence
• Within 4 months of Notice of Trial
• 21 days from additional particulars
• 18 months after service of the Notice of Trial
• With leave of the Court

Recent Changes

The Rules of the Superior Courts have been amended to open another opportunity for Defendants to make a Tender/Lodgment. A Tender/Lodgment can now be made or updated upon service by the Plaintiff of “a report of a medical practitioner concerning the plaintiff in a personal injuries action”.

Analysis

Effective from 26th April 2022, the change to the rules has provided another opening for Defendants to serve or increase a Tender during the litigation process. This change will assist Defendants who may wish to increase a Tender, upon receipt of a medical report updating the Plaintiff’s condition and prognosis.

It may also allow for Tenders to be issued much closer to a hearing date if reports are disclosed at that stage.

It will be important for Defendants to be cognisant of the 21 day window that is open upon service of such a report.

If you have any questions in relation to this article, please contact a member of our Litigation Team.