Amendment of UCPR Formal Offer Rules

The Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) were amended, commencing 23 June 2023, by the Uniform Civil Procedure (Offers to Settle) Amendment Rule 2023 which may be found here:  https://www.legislation.qld.gov.au/view/whole/html/asmade/sl-2023-0061. 

The import of the amendments go to the basis (or measure) of recovery – namely standard or indemnity basis – upon orders for costs of the proceeding in the circumstance of a propitious formal offer having been made by one of the parties to settle the proceeding under UCPR r 353:

1. Prior to amendment, r 360 provided that if a plaintiff made an offer under r 353, and subsequently at trial obtained an order “no less favourable than the offer”, the plaintiff was entitled to an order for costs of the proceeding assessed on the indemnity basis.  In contrast, the amended r 360 provides, in such circumstance, the plaintiff is entitled to an order for costs of the proceeding assessed on the standard basis to the date of the offer, and on the indemnity basis after such date. 
2. Prior to amendment, r 361 provided that if a defendant made an offer under r 353, and subsequently at trial the plaintiff obtained an order “less favourable to the plaintiff than the offer”, the plaintiff is entitled to an order for costs of the proceeding assessed on the standard basis to the date of the offer, and the defendant is entitled to an order for costs of the proceeding after that date assessed on the standard basis.  In contrast, the amended r 361 provides, in such circumstance, the plaintiff is entitled to an order for costs of the proceeding on the standard basis to the date of the offer, and the defendant is entitled to an order for costs of the proceeding after that date assessed on the indemnity basis.
3. Prior to the enactment of the new r 361A, in the event that a plaintiff’s claim is dismissed – whether or not a defendant had made an offer – the defendant is entitled to recover an order for costs of the proceeding assessed on the standard basis. Under the newly enacted r 361A, in the event the defendant makes an offer, but the plaintiff’s proceeding is dismissed, the defendant is entitled to an order for costs of the proceeding assessed on the standard basis to the date of the offer, and on the indemnity basis after such date.
4. The commencement date for the operation of the above rules is 23 June 2023.  Offers made prior to that date will continue to be regulated by the pre-amended UCPR.  Offers made after that date – in any proceeding – will be regulated by the amended rules.
5. In broad terms, the import of the amended rules – apropos propitious r 353 offers – is to shift the burden of costs more in favour of the defendant.  Lawyers – particularly if acting for a plaintiff – will need to alert their client as to this burden shift apropos the measure of recovery of, and exposure to, costs.  A plaintiff need make an early offer in order to maximise the prospect of attracting an order for costs on the indemnity basis.  Conversely, an earlier – and perhaps keener – offer by a defendant will place greater pressure upon a plaintiff given the costs burden if the offer is not beaten or claim dismissed.