The Applicant applied to settle the minutes of a previous Order resulting from a hearing in which the Respondent was represented by two law firms. In the previous hearing, the Respondent’s first law firm was seeking redaction from the proceedings of materials filed in an Irish Court. The Respondent’s second law firm was seeking leave to have the Respondent examined by way of written interrogatories rather than in person.

On receiving the Decision from the previous hearing, the Applicant’s lawyer drafted the proposed form of Order for Costs, which included double Costs on the basis of a Calderbank letter. The Respondent’s law firm dealing with the redaction Application promptly consented to the Order. The law firm dealing with the interrogatories Application did not provide a response. Pursuant to Rule 9.2(2)(c), the Applicant’s lawyer waited 10 days before sending the proposed form of Order to the Court for signature.

The firm dealing with the interrogatories Application subsequently objected to the Order for Costs. First, the firm argued that because the Applications brought by the first and second law firm were intertwined, there should really be only one set of Costs. Second, the firm argued that the letter the Applicant purported to rely on as a Calderbank offer, could not be properly characterized as a Calderbank letter and therefore should not have attracted double Costs.

The Court held that when determining Costs, it may consider whether any non-privileged settlement discussions should be taken into account. This was the same whether the discussions occurred formally as outlined in the Rules, or informally. The Court held, in this case, that the Applicant was entitled to be paid double Costs for the interrogatories Application.

The Court then reviewed whether there should only be one set of Costs awarded. The Court held that although there was a common objective behind the applications made by the law firms, two separate Applications were made for two separate issues. Each required and deserved separate treatment. Thus, two sets of Costs were warranted.