Costs Orders and Calderbank Letters in Irish Personal Injury Litigation

Quick Reference: Costs Orders and Calderbank at a Glance

Operative statute

Legal Services Regulation Act 2015, Section 169

Operative court rules

Order 99 of the Rules of the Superior Courts (recast by S.I. No. 584 of 2019)

Calderbank statutory gateway

Section 169(1)(f) of the 2015 Act

Origin of Calderbank doctrine

Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333 (English Court of Appeal)

Leading Irish authority (post-LSRA, PI)

McKeown v Crosby & Vocella [2021] IECA 139

Leading principles authority

Chubb European Group SE v Health Insurance Authority [2020] IECA 183 (Murray J)

Commencement of Part 11 LSRA 2015

7 October 2019

Sister page on this site

Lodgments and Tender Offers (formal payment-into-court mechanics)

Contents

Quick Definition: Costs Orders and Calderbank Letters

Costs orders allocate the financial burden of litigation; Calderbank letters shift it.

A costs order is a direction by an Irish court allocating responsibility for legal costs between the parties. Under Section 169(1) of the Legal Services Regulation Act 2015, the entirely successful party is entitled to costs against the unsuccessful party, unless the court orders otherwise having regard to seven discretionary factors.

A Calderbank letter is a written settlement offer marked "without prejudice save as to costs". The contents are inadmissible on the substantive issues of liability and quantum, but the court may consider the letter when allocating costs at the end of the case. The doctrine takes its name from Calderbank v Calderbank [1976] Fam 93, an English Court of Appeal decision in family law, and entered Irish personal injury litigation on a statutory footing through Section 169(1)(f) of the 2015 Act, which commenced on 7 October 2019.

The practical effect is asymmetric. A defendant may make a Calderbank offer that the plaintiff rejects. If the plaintiff then recovers no more than the offer at trial, the court may refuse the plaintiff costs from the date of the offer. The court may also order the plaintiff to pay the defendant's costs from that date. The Higgins v Irish Aviation Authority jurisprudence frames the offer as a factor of "decisive importance" in certain procedural contexts, particularly on appeals where formal lodgments are unavailable.

Origin and Adoption in Irish Law

Calderbank originated in 1975 English family law and entered Irish personal injury practice in October 2019.

The doctrine derives from the English Court of Appeal decision in Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333. Mrs Calderbank had made a pre-trial offer to transfer to her husband a house valued at approximately £12,000; he declined and proceeded to a lump-sum award of £10,000 at trial. The Court of Appeal (Cairns LJ, Scarman LJ and Sir Gordon Willmer) held that the husband's refusal of a more favourable offer had unnecessarily prolonged the proceedings, and reversed the costs burden onto him. The "without prejudice save as to costs" formulation was the procedural device: an offer that remained privileged on the merits but could be disclosed to the court on costs.

The doctrine reached Ireland piecemeal. The Supreme Court accepted Calderbank-type offers as relevant to costs in family proceedings in MN v SM (costs) [2005] IESC 30; [2005] 4 IR 461. The Court of Appeal then applied the principle to a personal injury appeal in Shannon v O'Sullivan [2016] IECA 105. In standard personal injury litigation, however, S.I. No. 12 of 2008 effectively excluded Calderbank letters by limiting the court's consideration to written offers other than in personal injury actions where a lodgment or tender offer could be made under Order 22 of the Rules of the Superior Courts.

That exclusion ended on 7 October 2019, when Part 11 of the Legal Services Regulation Act 2015 commenced and the Rules of the Superior Courts (Costs) 2019 (S.I. No. 584 of 2019) recast Order 99 to give effect to it. Two structural shifts followed. First, the allocation of costs in civil proceedings was placed on a statutory footing for the first time in modern Irish practice. Second, Murray J observed in Chubb European Group SE v Health Insurance Authority [2020] IECA 183; [2022] 2 IR 734 that the phrase "costs follow the event" had been retained in the marginal note of Section 169 but purged from the operative text and from Order 99 itself. The shift was real, even if the underlying default remained intact.

Timeline of the Calderbank doctrine in Ireland

Year	Event	Effect on Irish law
1975	Calderbank v Calderbank [1976] Fam 93 (English Court of Appeal)	Doctrine of "without prejudice save as to costs" offers established in English family law
2005	MN v SM (costs) [2005] IESC 30; [2005] 4 IR 461	Supreme Court accepts Calderbank-type offers in Irish family proceedings
2006	Veolia Water v Fingal County Council (No. 2) [2006] IEHC 240 (Clarke J)	Issue-based costs principle established; foundation for later Section 169(1)(b) jurisprudence
2008	S.I. No. 12 of 2008	Effectively excludes Calderbank letters from Irish personal injury proceedings (formal lodgments take precedence under Order 22)
2016	Shannon v O'Sullivan [2016] IECA 105	Court of Appeal applies Calderbank principle to a personal injury appeal pre-LSRA
2018	Moin v Sicika and O'Malley v McEvoy [2018] IECA	Differential costs order treated as the default response to a successful jurisdictional overshoot
2019	Part 11 of the Legal Services Regulation Act 2015 commenced 7 October 2019 (S.I. No. 502 of 2019); S.I. No. 584 of 2019, recasting Order 99 of the Rules of the Superior Courts, commenced 3 December 2019	Calderbank letters placed on statutory footing in all civil proceedings, including personal injury
2020	Higgins v IAA [2020] IECA 277 (Murray J); Chubb v HIA [2020] IECA 183 (Murray J)	"Decisive importance" language established for appellate Calderbank; comprehensive post-LSRA principles synthesised
2021	McKeown v Crosby & Vocella [2021] IECA 139 (Noonan J)	Leading modern PI authority; combined operation of Section 169(1)(f) and Section 17 differential costs
2024	Delaney v PIAB [2024] IESC 10; Little v Chief Appeals Officer [2024] IESC 53	Personal Injuries Guidelines confirmed binding; entirely successful / partially successful taxonomy clarified
2025	Quinlan v Quinlan [2025] IEHC 170 (Egan J); Nolan v County Registrar [2025] IECA 110 (Hyland J); ESB v Good [2025] IESC 40; S.I. No. 149 of 2025	Eight differential costs principles articulated; Schedule 1 reasonableness duty confirmed; "big issue" approach adopted; Order 99 ADR amendment
2026	Higgins v Coleman and MIBI [2026] IEHC 144 (O'Higgins J)	Section 169(1)(d) exaggeration jurisdiction applied to inflated future loss claims in personal injury

How Section 169 of the LSRA 2015 Allocates Costs

Section 169(1) entitles entirely successful parties to costs, subject to seven discretionary factors.

The operative provision is short and dense. Section 169(1) of the Legal Services Regulation Act 2015 provides:

"A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including— (a) conduct before and during the proceedings, (b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings, (c) the manner in which the parties conducted all or any part of their cases, (d) whether a successful party exaggerated his or her claim, (e) whether a party made a payment into court and the date of that payment, (f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and (g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation."

— Section 169(1), Legal Services Regulation Act 2015

The taxonomy matters. The Supreme Court in Little v Chief Appeals Officer & Ors [2024] IESC 53 confirmed a central distinction. Parties who are "entirely successful" form the only category entitled to costs as of right under subsection (1). Parties who are "partially successful" are governed instead by the broader discretion in subsection (3). Where the court denies an entirely successful party costs against an unsuccessful party, Section 169(2) requires the court to give reasons for that order.

The role of the seven factors was clarified by Murray J in Chubb European Group SE v HIA [2020] IECA 183. The factors apply only where the court is determining whether to "order otherwise" against the default. The starting point remains the entitlement of the entirely successful party to costs. The Court of Appeal in Word Perfect Translation Services Ltd v Minister for Public Expenditure later corrected a tendency, in some lower-court decisions, to treat "cost-effectiveness of the litigation" as an independent mandatory starting point under Section 169. Per Donnelly J, it is not. Cost-effectiveness is a thread running through several of the factors at (a) through (g), but the threshold question remains whether the court is "ordering otherwise" at all.

Section 168 of the 2015 Act, often read alongside Section 169, confers a discretion that the Court of Appeal in E&F v G&H [2021] IECA 108 described as "very wide and encompasses significant flexibility". That discretion extends to interlocutory applications, per Daly v Ardstone Capital Ltd [2020] IEHC 345 and the Court of Appeal's later confirmation. Section 168 applies to "any action or step in any proceeding" and requires the court to have regard to Section 169(1) when allocating interlocutory costs.

Within the recast Order 99, the most important provision for present purposes is Order 99, Rule 3(2), which codifies the formal effect of Calderbank offers under Irish court rules. The rule provides that, for the purposes of Section 169(1)(f), an offer to settle includes any offer in writing made without prejudice save as to the issue of costs. The drafting closed the door on any residual argument that Calderbank letters lacked statutory or procedural authority in Irish civil proceedings, including personal injury actions.

Section 169(1) LSRA 2015 factor-by-factor case treatment

Factor	What it covers	Leading Irish authority
169(1)(a) Conduct before and during proceedings	Pre-action engagement, response to particulars, vexatious applications, late discovery	Chubb v HIA [2020] IECA 183 (general principles); Word Perfect v Minister (Donnelly J)
169(1)(b) Reasonableness of raising or contesting issues	Issue-based costs deductions where a party pursued or contested issues unreasonably	Veolia Water v Fingal CC [2006] IEHC 240 (Clarke J); ESB v Good [2025] IESC 40
169(1)(c) Manner of conducting the case	Conduct during pleadings, hearings, and inter-solicitor correspondence	Dardis v Poplovka (Barr J); Higgins v Coleman [2026] IEHC 144
169(1)(d) Exaggeration of claim	Inflated special damages, unsupported loss-of-earnings claims, expert witness overreach	Higgins v Coleman and MIBI [2026] IEHC 144 (O'Higgins J)
169(1)(e) Payment into court	Order 22 lodgments and tender offers, including the 2022 amendment 21-day window	O'Malley v Hermann [2022] IEHC 9 (Coffey J); Order 22, rule 6 RSC
169(1)(f) Settlement offer	Calderbank letters (Order 99, rule 3(2)) and Section 17 CLCA 2004 formal offers	Higgins v IAA [2020] IECA 277 (Murray J); McKeown v Crosby [2021] IECA 139 (Noonan J); Gravity Construction [2021] IEHC 19 (Simons J)
169(1)(g) Unreasonable refusal of mediation or ADR	Mediation Act 2017 ss.14 and 21; solicitor statutory declaration under s.14; Order 56A ADR	Byrne, Hyslop & Kerrigan v Arnold [2024] IEHC 308 (Kennedy J) — 5% costs reduction; Mediation Act 2017

Calderbank vs Lodgments, Section 17 Offers, and Section 51A IRB

Four parallel mechanisms now create costs pressure in Irish personal injury proceedings.

Modern Irish personal injury practice contains four overlapping costs-pressure mechanisms. Each has a distinct legal basis, distinct timing rules, and a distinct degree of judicial discretion in its application. Distinguishing them precisely is one of the most common sources of confusion for claimants and is essential to costs strategy on both sides.

The four costs-pressure mechanisms in Irish personal injury practice

Mechanism	Legal basis	Form	Timing	Costs effect if not "beaten"
Order 22 lodgment / tender	Order 22 of the Rules of the Superior Courts (as amended by S.I. No. 396 of 2013 and S.I. No. 186 of 2022)	Payment of funds into Court (lodgment); notice of tender from qualified parties without actual payment	Strict procedural windows without leave: at defence, after notice of trial, after replies, after a medical report, or 18+ months after notice of trial. Leave required outside these windows	Near-automatic under Order 22, rule 6: plaintiff pays defendant's costs from the lodgment date, absent special cause shown
Section 17 CLCA 2004 formal offer	Section 17 of the Civil Liability and Courts Act 2004 and S.I. No. 169 of 2005 (commencement)	Notice of offer in the prescribed Courts Service form	Both parties must serve a formal offer within the "prescribed period" (after the personal injuries summons and within 14 days of the notice of trial). Mandatory, not optional	Court "shall have regard to" the offer when allocating costs, with statutorily prescribed flexibility (catastrophic injury heads under Section 17(2A) require a breakdown)
Calderbank letter	Section 169(1)(f) LSRA 2015; Order 99, rule 3(2) RSC; origin in Calderbank v Calderbank [1976] Fam 93	Letter marked "without prejudice save as to costs", containing clear terms, a deadline, and (per best practice) addressing costs to date	Any stage including pre-action, after IRB authorisation, during discovery, before trial, during hearing, or pending an appeal	Court "may have regard to" the offer; wholly discretionary; weight depends on timing, clarity, reasonableness, and whether the eventual outcome bettered the offer
Section 51A PIAB / IRB rejection	Section 51A of the Personal Injuries Assessment Board Act 2003 (originally inserted by Section 1 of the PIAB (Amendment) Act 2007; substituted on 13 February 2023 by Section 16 of the Personal Injuries Resolution Board Act 2022, commenced by S.I. No. 28 of 2023)	Operates automatically where the claimant rejects an IRB assessment the respondent accepted	Triggered the moment the claimant rejects (or is deemed to reject) the assessment	If the eventual court award does not exceed the IRB assessment, the claimant cannot recover costs and may be ordered to pay the respondent's costs from the rejection date (a functional "deemed lodgment")

The four mechanisms complement rather than compete with each other. A defendant in a complex personal injury action may face several of them simultaneously. The IRB assessment under Section 51A operates from the moment of authorisation. A Section 17 formal offer falls due within 14 days of notice of trial. A Calderbank letter can be issued when an updated medical report arrives. Funds can also be lodged within the 21-day window opened by the recent medical report under the 2022 amendment to Order 22. Each leaves the claimant exposed to a distinct slice of costs risk.

The mechanical detail of Order 22 lodgments and tenders is covered separately. The Section 17 formal offer procedure and the late-lodgment leave jurisdiction under Order 22, rule 1(7) raise distinct questions. These were considered in Ely v Dargan and more recently in O'Malley v Hermann & Anor [2022] IEHC 9 per Coffey J. Our sister page on lodgments and tender offers covers all three in detail. This page focuses on Calderbank letters and the broader costs-jurisdiction framework.

Anatomy and Timing of a Valid Calderbank Letter

A valid Calderbank letter satisfies six structural requirements, avoids five drafting red flags, and is timed against the litigation cost trajectory.

Defence-side practitioner commentary in Ireland has consolidated a clear anatomical standard for a Calderbank letter that the court will treat as a meaningful factor under Section 169(1)(f). Three structural elements work together: validity requirements, common drafting failures, and timing across the litigation arc.

The six-point validity checklist

A Calderbank letter that satisfies all six points below carries the maximum weight available under Section 169(1)(f) of the Legal Services Regulation Act 2015. A letter that fails any one of the six is materially weakened, as the Court of Appeal confirmed in Higgins v Irish Aviation Authority [2020] IECA 277 and Simons J held in Gravity Construction Ltd v Total Highway Maintenance Ltd [2021] IEHC 19.

1. Written form. The offer must be in writing. Oral offers do not engage Section 169(1)(f) and are not captured by Order 99, rule 3(2).
2. Clear privilege heading. The letter must be headed "Without Prejudice Save as to Costs" (or equivalent unambiguous wording). The privilege wording is what permits disclosure to the court on costs while preserving inadmissibility on the merits.
3. Specific monetary offer. The figure offered must be specific. "A reasonable contribution" or "a fair sum" does not qualify, per Simons J in Gravity Construction. A figure inclusive of VAT and interest is preferable; ambiguity defeats the offer.
4. Costs-to-date provision. The letter must address the plaintiff's reasonable costs to the date of acceptance, typically by offering to pay them on a party-and-party basis to be agreed or, failing agreement, adjudicated by the Office of the Legal Costs Adjudicators.
5. Reasonable acceptance deadline. A defined deadline must be stated (commonly 21 or 28 days from receipt). An offer with no deadline, or with a deadline so short it gives the plaintiff no genuine opportunity to evaluate the offer, is materially weakened.
6. Express reservation of costs reference. The letter must reserve the right to refer the correspondence to the court on the issue of costs once the substantive determination is concluded.

Red flags: when an offer is weak or invalid

The following drafting failures recur in reported decisions and routinely reduce or eliminate the offer's weight at the costs hearing.

• Ambiguous quantum. "A reasonable contribution" or "a sum to be agreed" was held invalid in Gravity Construction. A specific figure is essential.
• Silence on costs to date. An offer that quantifies damages but says nothing about the plaintiff's accrued costs may be discounted, as the Court of Appeal noted in Higgins v IAA. The plaintiff cannot evaluate the offer's true value without that information.
• Unreasonably short deadline. An offer with a deadline of three or four days, particularly during a busy litigation phase, gives the plaintiff no realistic window to assess. Courts have treated such deadlines as a marker of strategic intimidation rather than genuine settlement intent.
• Late timing without explanation. An offer served on the courtroom steps may still operate under Section 169(1)(f), but its weight diminishes because the plaintiff cannot avoid the bulk of costs already incurred. The offer in Higgins v IAA was discounted partly because it arrived two weeks before the appeal hearing.
• Conditional or compound offers. An offer contingent on a third party's acceptance, or compound offers tied to non-monetary concessions, complicate the bettering analysis. Where the eventual award is monetary only, the court must compare like with like.

Timing strategy across the litigation arc

A Calderbank letter operates differently at each stage of the case. The earlier the offer, the larger the proportion of total costs the offeree risks. The table below maps the practical effect of an unbettered Calderbank offer at each stage.

Calderbank timing map across the Irish personal injury litigation arc

Stage at which offer is made	Costs at risk to the rejecting party	Strategic note
Pre-action (before personal injuries summons)	All proceedings costs from issue onwards	Maximum costs upside for the offeror; rare in practice because liability/quantum positions not yet exchanged
Post-IRB authorisation, pre-defence	All proceedings costs from issue onwards (substantial)	Common strategic moment for defendants; pleadings and discovery costs still ahead
After defence, pre-discovery	Discovery, expert evidence, and trial costs (substantial)	Optimal cost-pressure window for defendants in medical negligence (expert reports forthcoming)
Pre-trial (within 14 days of notice of trial)	Trial and post-trial costs only	Section 17 CLCA 2004 formal offer falls due at this point; Calderbank often issued alongside
During trial	Post-offer trial days plus any post-trial costs	Weight reduced because most trial costs already incurred; still operable under Section 169(1)(f)
Pending appeal	Appeal costs only (Order 22 lodgment unavailable on appeal)	"Decisive importance" context per Murray J in Higgins v IAA; the only formal cost-pressure mechanism on appeal

How to draft and serve a Calderbank letter: a six-step procedure

The procedural sequence below sets out how defence solicitors typically draft and serve a Calderbank letter in Irish personal injury and medical negligence proceedings. Each step is keyed to the validity requirements above and to the statutory framework in Section 169 LSRA 2015 and Order 99, rule 3(2) RSC.

1. Assess the timing. Identify the optimal stage of the litigation at which to issue the letter (typically post-IRB authorisation and before significant discovery costs accrue). The earlier the offer, the greater the costs at risk for the offeree.
2. Calculate the offer figure. Reference the Personal Injuries Guidelines bands for general damages, add any quantified special damages, and form a realistic settlement valuation. The offer figure should be at or slightly below the realistic ceiling of the plaintiff's likely recovery.
3. Draft the letter with the six required elements. Headed "Without Prejudice Save as to Costs"; specific monetary offer; provision for the plaintiff's reasonable costs to date on a party-and-party basis; defined acceptance deadline (commonly 21 or 28 days); express reservation of the right to refer the letter on costs; signature and dated.
4. Serve on the opposing solicitor. Service by recorded delivery or DX (Document Exchange) is preferable for proof of receipt. Keep proof of service safe; the date of receipt will be material at the costs hearing.
5. Diary the acceptance deadline. Calendar the deadline in the case management system. If the deadline expires without acceptance, the offer typically lapses (though the letter remains relevant at costs).
6. Preserve the letter for the costs hearing. Retain the original signed copy, proof of service, and any subsequent correspondence relating to the offer. These will be tendered to the trial judge once the substantive determination has concluded.

How to Evaluate a Calderbank Offer You Have Received

A plaintiff's evaluation of a Calderbank offer turns on five questions: realistic value, net outcome after costs, probability of bettering at trial, conduct risk, and timing.

Defence-side commentary dominates the published Irish literature on Calderbank letters. The plaintiff-side perspective receives less attention, but it is the perspective in which most rejection decisions are actually made. The five-step framework below is what a careful claimant solicitor will work through when an offer arrives.

1. Compare the offer to the Personal Injuries Guidelines bands. Identify the relevant general-damages bracket under the 2021 Guidelines (or any updated version in force). Add the quantified special damages on top. The Supreme Court in Delaney v PIAB [2024] IESC 10 confirmed the binding nature of the Guidelines on judicial assessment of general damages. An offer that sits within the realistic bracket is harder to beat than one that sits below it.
2. Calculate the realistic net outcome at trial. Project the likely damages award; deduct the plaintiff's solicitor-and-own-client costs (under the Section 150 LSRA 2015 fee agreement); deduct any costs at risk if Section 169(1)(b) issue-based deductions apply; consider differential costs exposure under Section 17 of the Courts Act 1981 if the recovery falls within a lower court's jurisdiction.
3. Assess the probability of bettering the offer at trial. A claim with strong liability, well-supported quantum evidence, and limited litigation risk may justify rejection. A claim with contested liability, weak expert support, or a defendant with deep pockets and patience for trial is more vulnerable to a Calderbank-driven costs reversal.
4. Audit conduct risk. The Section 169(1)(a) to (d) factors operate independently of the offer itself. Even if the plaintiff beats the Calderbank, costs can still be reduced for unreasonably contested issues (per Veolia and Higgins v Coleman [2026] IEHC 144) or for failure to engage with mediation (per Section 169(1)(g) and the Byrne, Hyslop & Kerrigan jurisprudence).
5. Decide before the deadline. A defined acceptance window typically lasts 21 or 28 days. The deadline can be extended by negotiation in some cases, but allowing it to expire silently is rarely strategically sound. A counter-offer (which may itself constitute a Calderbank letter back at the defendant) preserves negotiation while protecting the plaintiff's own costs position.

Common Misconceptions About Calderbank Letters and Costs Orders

Five recurring misconceptions distort practical assessment of Calderbank costs risk in Irish personal injury practice.

Each misconception below is followed by the correct doctrinal position and the authority that establishes it. The list is not exhaustive but covers the misunderstandings that most often arise in correspondence with claimants and unrepresented parties.

Misconception 1: Calderbank letters are only used by defendants.

Incorrect. Either party can issue a Calderbank letter. The "without prejudice save as to costs" privilege wording and the Section 169(1)(f) statutory effect operate symmetrically. A plaintiff who issues an offer that the defendant rejects and then loses at trial can rely on the offer to seek enhanced costs from the date of rejection.

Misconception 2: Section 169 LSRA 2015 abolished the rule that "costs follow the event".

Incorrect. Section 169 codified a refined version of the rule. The entirely successful party is still entitled to costs as of right under Section 169(1). What changed is that the entitlement is now expressly subject to seven discretionary factors. The "costs follow the event" phrasing was removed from the operative text and from Order 99, but the underlying default rule survives, as Murray J confirmed in Chubb v HIA [2020] IECA 183.

Misconception 3: If you beat the Calderbank offer by even one euro, the offer has no effect on costs.

Partly correct, mostly misleading. If the headline award exceeds the offer figure, the Section 169(1)(f) gateway does not operate against the plaintiff. However, the conduct factors at Section 169(1)(a) to (d) remain available. A plaintiff who marginally exceeds an offer but exaggerated heads of damage, prolonged the trial unreasonably, or refused mediation can still face costs deductions independent of the offer.

Misconception 4: A Section 17 formal offer under the Civil Liability and Courts Act 2004 is the same as a Calderbank letter.

Incorrect. Section 17 formal offers are statutorily mandated and follow a prescribed Courts Service form; Calderbank letters are discretionary written offers governed by Section 169(1)(f) and Order 99, rule 3(2). They can coexist in the same case and serve different strategic purposes. See the four-mechanism comparison table above.

Misconception 5: The court must follow the Calderbank offer terms exactly when allocating costs.

Incorrect. The court's discretion under Section 169 is broad. Even where an offer has not been bettered, the court may decline to award the defendant costs from the offer date where the offer was poorly drafted, ambiguous, timed unreasonably, or silent on costs to date (per Higgins v IAA [2020] IECA 277). The offer is a factor of "decisive importance" in certain procedural contexts, but it is not a mechanical trigger.

Leading Irish Cases on Costs and Calderbank

The modern Irish case-law arc runs from Veolia (2006) through Higgins and Chubb (2020) to ESB v Good (2025).

"In the particular circumstances in which an appeal is brought to this Court only against the assessment of the quantum of damages by the High Court, the facility for the making of offers of the kind referred to in these provisions can assume decisive importance in determining what order for costs is just."

per Murray J in Higgins v The Irish Aviation Authority [2020] IECA 277

Three lines of authority converge in the modern jurisprudence: the issue-based costs principle from Veolia, the Calderbank line from Higgins v IAA and McKeown v Crosby, and the comprehensive synthesis of post-LSRA principles in Chubb v HIA. Each warrants close attention.

Three further decisions complete the modern picture. Shannon v O'Sullivan [2016] IECA 105 confirmed pre-LSRA that the refusal of a Calderbank offer on appeal could lead to costs of the appeal being awarded against the plaintiff. Gravity Construction Ltd v Total Highway Maintenance Ltd [2021] IEHC 19 (Simons J) established that drafting precision matters: an offer of a "reasonable contribution" without clear terms was held not to qualify as a valid Calderbank offer under Section 169(1)(f). Moin v Sicika and O'Malley v McEvoy ([2018] IECA) established that judges should grant differential costs orders absent good reason where damages fall within a lower court's jurisdiction.

Recent doctrinal developments: 2024 to 2026

The pace of doctrinal development on Irish costs jurisdiction accelerated materially in the 2024 to 2026 period. Six developments stand out.

• Delaney v PIAB [2024] IESC 10. The Supreme Court confirmed the constitutional validity of the Personal Injuries Guidelines and their binding nature on judicial assessment of general damages. The decision tightened the valuation framework against which Calderbank offers are now assessed.
• Little v Chief Appeals Officer & Ors [2024] IESC 53. The Supreme Court refined the taxonomy in Section 169 between "entirely successful" parties (subsection 1) and "partially successful" parties (subsection 3). The Section 169(2) reasons requirement applies to all departures from the default.
• Quinlan v Quinlan [2025] IEHC 170 (Egan J, March 2025). The eight differential costs principles set out earlier in this article were articulated for the first time in a consolidated form. This decision is now the practitioner reference point for any High Court action recovering within Circuit Court jurisdiction.
• Nolan v County Registrar [2025] IECA 110 (Hyland J, May 2025). The Section 141 LSRA 2015 reasonableness duty was confirmed as a mandatory cross-check at the adjudication stage, even within District Court scales. Bills of costs presented without engagement with the Schedule 1 factors can be quashed for procedural defect.
• Electricity Supply Board v Good & Ors [2025] IESC 40. The Supreme Court adopted Leggatt J's English "big issue" reasoning from Iraqi Civilians v Ministry of Defence, allowing a costs penalty against a party that won on formal relief but lost on the central contested issue.
• S.I. No. 149 of 2025. The Order 99 amendment introduced express provision for the court to consider an unreasonable refusal to participate in any ADR process under Order 56A, reinforcing the Section 169(1)(g) gateway.
• Higgins v Coleman and MIBI [2026] IEHC 144 (O'Higgins J, 23 January 2026). Applying Veolia issue-based costs principles within Section 169 LSRA 2015, the High Court denied a successful personal injury plaintiff (i) the costs of one of five trial days and (ii) the costs of her expert accountant's report, after finding her €1.4 million future-loss-of-earnings claim grounded in flawed expert evidence. Total damages awarded €170,564 against a claim of €1.752 million.

The combined effect is that the Irish costs jurisdiction in 2026 operates in a materially different framework from the position in 2019. Calderbank letters now sit within a broader matrix of conduct, jurisdictional, and ADR-engagement factors, all subject to discretionary judicial assessment under Section 169 and parallel statutory provisions.

When the Court Departs from the Default Costs Rule

Issue-based costs deductions, exaggeration, conduct, and mediation refusal can all displace the default rule.

The default rule under Section 169(1) is unforgiving on its face: the entirely successful party is entitled to costs. The seven factors at (a) to (g) are the gateways for departure. Modern case law has developed each in distinct ways.

The issue-based costs principle from Veolia Water v Fingal CC [2006] IEHC 240 operates within Section 169(1)(b). Where a successful party has pursued an issue unreasonably (or contested one unreasonably), the court may deduct the attributable hearing time, expert fees, and pleadings costs. The Supreme Court took this approach further in Electricity Supply Board v Good & Ors [2025] IESC 40. The Court applied Leggatt J's English "big issue" reasoning from Iraqi Civilians v Ministry of Defence [2018] EWHC 690 (QB). The decision confirms that a party who wins on formal relief but loses on the central contested issue may still face a substantial costs penalty.

Costs deductions for unreasonably pursued issues are policed via Veolia principles operating within Section 169(1)(b) (whether it was reasonable for a party to raise particular issues) and 169(1)(c) (the manner of conducting the case), as Higgins v Coleman demonstrates. The court there disallowed costs attributable to the flawed expert accountancy report that grounded a €1.4 million future loss-of-earnings claim and the costs of one of five trial days, while declining to make a positive costs order against the plaintiff. The same logic applies to inflated special damages claims more generally; the line between optimistic advocacy and unreasonable claim depends on the quality of the underlying evidence and the manner in which the issue is pursued.

Mediation refusal has emerged as a separate costs risk under Section 169(1)(g), which directs the court to consider whether parties were "unreasonable in refusing to engage in the settlement discussions or in mediation" where invited by the court. Section 14 of the Mediation Act 2017 obliges solicitors, before issuing proceedings, to advise their clients to consider mediation, to provide information about mediation services, and to explain the benefits of mediation. Solicitors must also swear a statutory declaration confirming compliance, to be filed with the originating document. Non-compliance has costs consequences, as the High Court confirmed in Byrne, Hyslop & Kerrigan v Arnold [2024] IEHC 308 (Kennedy J, 5 June 2024), where a 5% reduction in the successful plaintiffs' costs was imposed.

Section 21 of the 2017 Act empowers the court to take account of any unreasonable refusal of mediation when allocating costs. In Byrne, Hyslop & Kerrigan v Arnold, the High Court reduced a successful plaintiff's recoverable costs by 5% to reflect a failure to engage properly with the mediation obligations. Order 56A of the Rules of the Superior Courts already empowers the court to invite the parties to use ADR, and the costs consequences of refusing such an invitation operate through Section 169(1)(g) and the discretion preserved under Order 99.

Conduct in the broader sense is governed by Section 169(1)(a) and (c). Pre-action conduct can be relevant (for example, a failure to engage with the IRB process or with discovery), as can litigation conduct such as late delivery of particulars, unreasonable assertions in pleadings, or vexatious applications. The Court of Appeal in Word Perfect made clear, however, that conduct factors operate as discretionary modifiers; they do not convert "was the litigation conducted as cost-effectively as possible" into a mandatory starting point.

The factor at Section 169(1)(e) (payment into Court) overlaps with Order 22 lodgments and ties the lodgment mechanism back into the Section 169 framework. The factor at Section 169(1)(f) (offers to settle) covers both Section 17 CLCA 2004 formal offers and Calderbank letters. Both are now formally relevant to the discretion exercised under Section 169.

Differential Costs Orders Under Section 17 of the Courts Act 1981

Differential costs orders penalise plaintiffs who issue in a higher court but recover within a lower court's monetary jurisdiction.

The differential costs order operates parallel to, and often in combination with, the Section 169 framework. It is governed by Section 17 of the Courts Act 1981 (as amended by Section 14 of the Courts Act 1991). The mechanism applies where a plaintiff issues proceedings in the High Court but recovers damages within the Circuit Court's monetary jurisdiction. It also applies where a plaintiff issues in the Circuit Court and recovers within the District Court jurisdiction. In either case, the trial judge may make an order under Section 17(5) doing two things. First, the order confines the plaintiff to costs on the scale of the appropriate lower court. Second, the order requires the plaintiff to pay the defendant the difference between costs the defendant actually incurred and the costs the defendant would have incurred in the appropriate lower court.

The Court of Appeal decisions in Moin v Sicika and O'Malley v McEvoy ([2018] IECA) treated the differential order as the default response to a successful jurisdictional overshoot, departable only for specific "good reasons". McKeown v Crosby applied that approach in combination with a Calderbank letter on appeal. Quinlan v Quinlan [2025] IEHC 170 then consolidated the law by articulating eight principles for the assessment of differential orders, drawing together earlier authorities and the Section 169 conduct factors.

For plaintiffs and their solicitors, the practical implication is that jurisdiction selection has direct costs consequences. An over-pleaded claim issued in the High Court attracts a heavier costs exposure on the defence side, all of which can be transferred at trial. Nolan v County Registrar [2025] IECA 110 confirmed at adjudication stage that even within District Court scales, the Section 141 LSRA 2015 reasonableness principles in Schedule 1 must be applied as a qualitative cross-check; a mechanical application of the scale alone is procedurally flawed.

Costs Orders and Calderbank in Medical Negligence

Medical negligence amplifies costs risk because valuation bands are wide and expert evidence is heavy.

Medical negligence litigation occupies a distinctive position in the modern Irish costs framework. Three features sharpen the impact of Section 169 and Calderbank letters in this category. First, quantum is harder to predict than in standard personal injury cases: future care needs, capital cost of equipment, periodic payments under the Civil Liability (Amendment) Act 2017, and complex multipliers for loss of earnings widen the realistic range of outcomes. Second, expert evidence costs are substantial: liability typically requires multiple medical experts, a consulting engineer in some cases, an actuary, and a vocational rehabilitation specialist. Third, the procedural sequence is longer, with discovery and inter-expert correspondence sometimes running for years before trial.

Each feature compounds the costs exposure created by Section 169(1)(f). A defendant who issues a Calderbank letter at a point where the plaintiff has not yet finalised expert evidence creates real strategic pressure: rejection without confidence in the valuation can result in the plaintiff funding both sides' subsequent costs if the trial outcome falls short. The Hayes Solicitors commentary on Section 169(1)(f) frames this as a particular hazard where the plaintiff "marginally exceeds" the offer at trial but the rejection was unreasonable in light of the available evidence.

The Office of the Legal Costs Adjudicators reported, in its 2025 publication of 2024 data, that medical negligence cases accounted for €42.9 million of the €145.3 million in legal costs claimed across 912 valid applications that year. Across all categories, the Office allowed approximately 58% of the costs claimed in the 179 cases that proceeded to full determination. That headline figure of 42% disallowance at adjudication is a material additional risk for both sides, on top of the underlying allocation question at trial.

Office of the Legal Costs Adjudicators 2024 adjudication data (published 2025)

Metric	Figure	Practical implication for parties
Valid applications filed in 2024	912 (€145.3 million total claimed)	High volume of disputes about costs post-settlement or post-judgment; slight reduction from 1,015 in 2023
Cases proceeding to formal adjudication	179 cases (€35.25 million total claimed)	Most disputes settle informally before formal adjudication
Costs allowed in adjudicated cases	€20.48 million allowed (58% of €35.25m claimed)	42% average write-down on costs that go to formal adjudication; €14.7m total deduction
Medical negligence cases adjudicated	24 cases; €17.2m claimed; €9.84m allowed (57%)	Largest single category by value adjudicated; €7.36m deducted; subject to rigorous Schedule 1 scrutiny
Medical negligence applications filed	136 applications	Third-largest single category by case count of applications filed
Road traffic applications filed	181 applications (highest volume)	Lower per-case value but largest number of disputed bills filed

Source: Office of the Legal Costs Adjudicators, Annual Report 2024 (published July 2025), as reported in Irish Times, "Adjudicators cut almost €15m legal costs from €35m claimed in 179 cases" (8 July 2025).

The relationship between IRB rejection and Section 51A also bears on medical negligence claims that have been authorised through the Injuries Resolution Board mediation track. Where the respondent accepted an IRB assessment and the claimant rejected it, the Section 51A deemed-lodgment effect overlays the standard Section 169 framework. If the court award does not exceed the IRB figure, the claimant cannot recover costs. The claimant may also be ordered to pay the defendant's costs from the rejection date. Read alongside the binding nature of the Personal Injuries Guidelines confirmed in Delaney v PIAB [2024] IESC 10, the costs risk of rejecting an IRB assessment for general damages alone has tightened materially.

The combined operation of these provisions has practical implications for valuation. A claimant whose realistic recovery sits within 10 to 15% of a defendant's Calderbank offer is exposed to the prospect of a net loss after costs, even where they technically succeed at trial. For sophisticated claimants in clinical negligence, the assessment of any Calderbank offer requires careful comparison against three benchmarks. First, the Personal Injuries Guidelines bands. Second, the realistic net outcome after solicitor's and counsel's fees. Third, the probability of bettering the offer at trial taking the litigation cost trajectory into account.

UK Differentiation: Calderbank vs CPR Part 36

Ireland retained judicial discretion; England and Wales codified the equivalent mechanism as Part 36.

Calderbank is an English doctrine in origin, but England and Wales has since codified an equivalent mechanism in Part 36 of the Civil Procedure Rules. Part 36 operates as a rigid procedural code: offers are made in prescribed form, acceptance and rejection carry prescribed consequences, and the costs penalties for failure to beat a Part 36 offer are largely automatic rather than discretionary. A successful claimant who beats their own Part 36 offer at trial is entitled to enhanced interest, indemnity costs, and an additional sum under CPR 36.17, all on a near-mechanical basis.

Ireland has not followed that path. Section 169(1)(f) of the LSRA 2015 places offers within a discretionary framework. The court "may have regard" to the date, terms and circumstances of an offer; it is not bound to award any specific consequence. The Court of Appeal in Higgins v IAA emphasised that the weight given to a Calderbank offer depends on its drafting, timing and reasonableness. The procedural posture also matters. The absence of Order 22 lodgment as an alternative in appellate proceedings was material in that case.

The Calderbank doctrine in England has not disappeared. It still operates in some family law contexts under the Family Procedure Rules 2010, particularly at the Financial Dispute Resolution stage under rule 9.17, and in commercial litigation where Part 36 does not technically apply. Practitioners conducting cross-border work should be cautious about transferring CPR Part 36 logic onto Irish facts: the Irish position is fact-sensitive and judicial discretion is wide.

Frequently Asked Questions

What makes a Calderbank letter valid in Ireland?

A valid Calderbank letter in Ireland is a written settlement offer marked "without prejudice save as to costs" containing clear terms, a deadline for acceptance, and provision for the plaintiff's reasonable costs to the date of acceptance.

The wording requirements derive from the principle in Calderbank v Calderbank [1976] Fam 93. They have been refined under Section 169(1)(f) of the Legal Services Regulation Act 2015 and Order 99, rule 3(2) of the Rules of the Superior Courts. The leading Irish decisions include Higgins v Irish Aviation Authority [2020] IECA 277 and Gravity Construction Ltd v Total Highway Maintenance Ltd [2021] IEHC 19. Both emphasise that ambiguous offers (such as a "reasonable contribution" without quantified terms) and offers silent on costs to date are materially weakened. Defence-side commentaries from Hayes Solicitors LLP and Holmes Solicitors set out the typical anatomical requirements.

Practitioner note: Drafting matters. An offer that fails to quantify the figure, to specify a reasonable deadline, or to address costs already incurred can be discounted or disregarded at the costs hearing.

Read more: See Lodgments and Tender Offers for the alternative formal mechanism.

What happens if a plaintiff rejects a Calderbank offer and then loses at trial?

If a plaintiff rejects a Calderbank offer and the eventual court award does not exceed the offer, the court may refuse the plaintiff costs from the date of the offer. The court may also order the plaintiff to pay the defendant's costs from that date.

The result is not automatic. Under Section 169(1)(f), the court has discretion and will consider the date, terms and circumstances of the offer, the reasonableness of the rejection at the time, and any "decisive importance" the offer carried in the procedural context. The Court of Appeal decision in McKeown v Crosby & Vocella [2021] IECA 139 illustrates the worst-case outcome for a plaintiff. Damages were reduced from €76,000 to €41,000 on appeal. The plaintiff bore full appeal costs. A differential costs order under Section 17 of the Courts Act 1981 covered the High Court overshoot.

Practitioner note: Marginal cases (where the plaintiff "just beats" the offer) still carry residual risk because the court can have regard to conduct factors at Section 169(1)(a) and (c) when assessing the reasonableness of the rejection.

Read more: See McKeown v Crosby [2021] IECA 139 (referenced above) for the leading recent illustration.

Are Calderbank letters allowed in personal injury cases in Ireland?

Yes, Calderbank letters have been formally available in Irish personal injury cases since 7 October 2019, when Section 169 of the Legal Services Regulation Act 2015 commenced.

Before that date, S.I. No. 12 of 2008 effectively excluded Calderbank letters from personal injury actions on the basis that the lodgment or tender mechanism under Order 22 of the Rules of the Superior Courts already provided a formal route. The 2015 Act and the recast Order 99 (under S.I. No. 584 of 2019) reopened the doctrine: Section 169(1)(f) directs the court to consider "whether a party made an offer to settle the matter", and Order 99, rule 3(2) confirms that this includes offers made without prejudice save as to costs. The Hayes Solicitors LLP commentary on the 2015 Act describes this as putting Calderbank on a "firm, undeniable statutory footing" in personal injury and clinical negligence actions.

Practitioner note: The pre-2019 history is worth understanding because some older commentaries still describe Calderbank as excluded from PI. That position has not been the law since October 2019.

Read more: See the consolidated text on Section 169 (Revised) on the Law Reform Commission site.

How is a Calderbank letter different from an Order 22 lodgment?

A lodgment requires actual payment of funds into Court (or a notice of tender by a qualified party) within strict procedural windows under Order 22; a Calderbank letter is a written offer that requires no payment and can be made at any stage.

The costs consequences also differ. Under Order 22, rule 6, if the plaintiff fails to beat the lodgment, the rule is near-automatic: the plaintiff pays the defendant's costs from the lodgment date, absent special cause shown. Under Section 169(1)(f), the consequences of an unmatched Calderbank offer are discretionary: the court "may have regard" to the offer and weighs its date, terms and circumstances. S.I. No. 186 of 2022 added a new 21-day window for late lodgments following the service of a medical report, but the underlying mechanical difference remains: lodgments are formal, rule-bound and rigid; Calderbank letters are informal, contractual in form, and flexible.

Practitioner note: The two mechanisms are complementary, not alternatives. A defendant may use both in the same case at different stages.

Read more: Detailed mechanics of lodgments are covered on our Lodgments and Tender Offers page.

Can a Calderbank offer be made during a hearing or on appeal?

Yes, a Calderbank offer can be made at any stage including during the trial itself or pending an appeal. Timing affects weight, not validity.

In Higgins v The Irish Aviation Authority [2020] IECA 277, Murray J held that on a Court of Appeal quantum-only appeal, where Order 22 lodgments are not available, a Calderbank offer "can assume decisive importance in determining what order for costs is just". The Court of Appeal earlier reached the same conclusion in Shannon v O'Sullivan [2016] IECA 105. The countervailing point is that late offers are weaker: in Higgins v IAA the offer was discounted because it was late in the appeal timetable and silent on costs incurred to date.

Practitioner note: An offer made well before trial preserves the maximum costs upside if the offeree rejects unreasonably. An offer made on the courtroom steps captures less of the costs that have already accrued.

Read more: See Appeals in Personal Injury Cases for the appellate context.

What is the difference between a Section 17 formal offer and a Calderbank letter?

A Section 17 formal offer is a statutorily mandated written offer required of both parties in personal injury actions; a Calderbank letter is a discretionary written offer that may be served at any stage.

Section 17 of the Civil Liability and Courts Act 2004 obliges both parties to a personal injuries action to serve a formal written offer of settlement within the "prescribed period" (after the personal injuries summons and within 14 days of notice of trial). The offer is served in the prescribed Courts Service form. Section 17(2A) requires offers in catastrophic injury claims to be broken down by head of damage. A Calderbank letter, by contrast, is not statutorily mandated; it is a contractual settlement proposal whose costs significance comes from Section 169(1)(f) of the 2015 Act. Both mechanisms feed into the court's discretion when allocating costs at the conclusion of the case.

Practitioner note: Section 17 formal offers and Calderbank letters can coexist in the same case. A defendant may serve a Section 17 offer to satisfy the statutory obligation and a separate Calderbank letter for strategic costs pressure outside the prescribed period.

Read more: See our reference page on the Civil Liability and Courts Act 2004.

What is the leading Irish case on Calderbank letters in personal injury?

The leading modern Irish authority on Calderbank letters in personal injury litigation is McKeown v Crosby & Vocella [2021] IECA 139 (Noonan J).

In McKeown, the Court of Appeal held that a plaintiff who rejected a Calderbank offer after a High Court judgment but before the appeal, and who then recovered damages on appeal below the offer figure, was liable for the defendants' appeal costs and for a differential costs order under Section 17 of the Courts Act 1981. The case illustrates the combined operation of Section 169(1)(f) LSRA 2015 and the jurisdictional differential mechanism. For costs principles more broadly, Chubb European Group SE v HIA [2020] IECA 183 (Murray J) is the foundational post-LSRA judgment. For appellate Calderbank specifically, Higgins v IAA [2020] IECA 277 (Murray J) established the "decisive importance" language.

Practitioner note: McKeown demonstrates that Calderbank weight is maximised when paired with an early costs-differential warning letter, served by the defendant shortly after the personal injuries summons.

Read more: McKeown v Crosby & Vocella is available on BAILII.

Can a defendant withdraw a Calderbank letter once it has been served?

A Calderbank letter can be withdrawn before it has been accepted, but a withdrawn offer loses its costs significance under Section 169(1)(f) LSRA 2015 from the date of withdrawal.

Calderbank letters are contractual offers that follow ordinary offer-and-acceptance principles. A defendant who served a Calderbank letter and who later wishes to withdraw it (for example, because new medical evidence reduces the realistic settlement value) can do so by clear written communication to the plaintiff's solicitor before acceptance. However, the costs pressure created by the offer evaporates from the moment of withdrawal. A court considering costs under Section 169(1)(f) will weigh the period during which the offer was live, but cannot give costs weight to an offer that was no longer open to acceptance at the trial date. Defendants should consider whether to allow the offer to expire by its own terms (preserving the costs effect of the rejection during the open period) rather than expressly withdrawing it.

Practitioner note: A Calderbank letter with a stated acceptance deadline that has passed is treated differently from a withdrawn offer. The expired but unwithdrawn offer retains evidential value at the costs hearing for the period it was open; the withdrawn offer's evidential value ends on the withdrawal date.

What happens to costs if the case settles before trial after a Calderbank letter has been served?

When a case settles before trial, the costs position is determined by the settlement terms negotiated between the parties; the Calderbank letter is not opened to a court because no court order is made.

A Calderbank letter operates as a costs lever in the lead-up to trial. Most personal injury cases in Ireland settle before judgment. In a pre-trial settlement, the parties typically agree both the principal sum and the costs basis (commonly party-and-party costs to be agreed or adjudicated). The Calderbank letter influences this negotiation directly: a plaintiff who has rejected a Calderbank offer and now faces trial in a fortnight will weigh the costs risk in deciding whether to settle for the offer figure or close to it. A defendant who has served a Calderbank letter holds a credible threat. The actual letter is never opened to a court if the case never reaches judgment. Its function is to shape the bargaining position during the pre-trial settlement window.

Practitioner note: In approximately 95% of Irish personal injury cases that reach the Personal Injuries Resolution Board stage and proceed to litigation, settlement occurs before judgment. The Calderbank letter's primary practical function is therefore as a pre-trial settlement-shaping instrument rather than a costs-order trigger.

Related Questions on Costs and Settlement

These three short answers bridge from doctrinal reference to the practical claimant-facing pages elsewhere on this site.

How are legal costs calculated in Irish medical negligence cases?

Costs in medical negligence litigation include party-and-party costs (recoverable from the losing side) and solicitor-and-own-client costs (the agreement between the claimant and their solicitor). Party-and-party costs are governed by Section 169 LSRA 2015 and adjudicated by the Office of the Legal Costs Adjudicators against the reasonableness principles in Schedule 1 of the 2015 Act. See our practical guide on medical negligence legal costs for fee structures and outlay categories.

What happens if I reject an IRB assessment?

If the respondent accepted an Injuries Resolution Board assessment and the claimant rejected it, Section 51A of the Personal Injuries Assessment Board Act 2003 operates as a deemed lodgment. If the eventual court award does not exceed the IRB figure, the claimant cannot recover costs and may be ordered to pay the respondent's costs from the rejection date. See our guide on accepting or rejecting an IRB assessment.

Can I lose money even if I win a personal injury case in Ireland?

Yes. A plaintiff who recovers damages but fails to beat a Calderbank offer, exceeds the appropriate court's monetary jurisdiction, or pursues unreasonable issues can face a net loss after costs. The McKeown v Crosby [2021] IECA 139 fact pattern demonstrates this in practice. See our guide on whether you can lose money on a no-win-no-fee claim.

Glossary of Key Terms

The terms below recur throughout this article and across the linked primary sources. Each definition is calibrated to Irish personal injury and medical negligence practice as at May 2026.

Costs follow the event

The traditional common-law rule that the unsuccessful party in civil litigation pays the successful party's costs. The rule survives in modern Irish practice in the form of Section 169(1) LSRA 2015, which entitles the entirely successful party to costs subject to seven discretionary factors. The phrase appears in the marginal note of Section 169 but not in the operative text. (See Section 169 analysis above)

Party-and-party costs

The legal costs that one party in litigation can recover from the other party on an inter-parties basis, by order of the court. Governed in Ireland by Section 169 of the Legal Services Regulation Act 2015 and the recast Order 99 of the Rules of the Superior Courts. Adjudicated by the Office of the Legal Costs Adjudicators where the parties cannot agree. (See Section 169 analysis above)

Solicitor-and-own-client costs

The fees a client owes their own solicitor under a fee agreement made under Section 150 of the Legal Services Regulation Act 2015. Separate from party-and-party costs and not governed by Section 169. A successful plaintiff may recover party-and-party costs from the defendant but still owe a balance to their own solicitor.

Calderbank letter

A written settlement offer marked "without prejudice save as to costs" that the court may consider when allocating costs under Section 169(1)(f) LSRA 2015 and Order 99, rule 3(2) RSC. Named after the English Court of Appeal decision in Calderbank v Calderbank [1976] Fam 93. Inadmissible on the substantive merits but admissible on the issue of costs. (See Anatomy and Timing section)

Without prejudice save as to costs

A privilege wording that allows a settlement communication to remain inadmissible on the merits of the dispute while reserving the right to disclose the communication to the court when the issue of costs falls to be determined. The wording is the procedural marker that engages Section 169(1)(f). (See Anatomy section)

Order 22 lodgment

A payment of funds into court by a defendant in satisfaction of a claim, made under Order 22 of the Rules of the Superior Courts. Strict procedural windows govern when a lodgment can be made without leave (at defence, after notice of trial, after replies, after a medical report, or 18+ months after notice of trial). If the plaintiff fails to recover an amount exceeding the lodgment at trial, the cost consequences under Order 22, rule 6 are near-automatic. (See four-mechanism comparison)

Tender offer

A formal written offer of settlement from a qualified party (commonly state respondents or self-insurers) made under Order 22 without the requirement of actual payment of funds into court. Functionally similar to a lodgment but without the cash deposit. (See four-mechanism comparison)

Section 17 formal offer (CLCA 2004)

A written settlement offer made under Section 17 of the Civil Liability and Courts Act 2004. Both parties in a personal injuries action are statutorily obliged to serve a formal offer within the prescribed period (after the personal injuries summons and within 14 days of notice of trial). The offer is served in the prescribed Courts Service form. Section 17(2A) requires offers in catastrophic injury claims to be broken down by head of damage. (See four-mechanism comparison)

Section 51A deemed lodgment (PIAB Act 2003)

An automatic costs mechanism under Section 51A of the Personal Injuries Assessment Board Act 2003 (as inserted by the PIAB (Amendment) Act 2007). Triggered when a claimant rejects an Injuries Resolution Board assessment that the respondent accepted. If the eventual court award does not exceed the IRB assessment, the claimant cannot recover costs and may be ordered to pay the respondent's costs from the rejection date. (See four-mechanism comparison)

Differential costs order

A costs order made under Section 17(5) of the Courts Act 1981 (as amended by Section 14 of the Courts Act 1991) where a plaintiff recovers damages within the monetary jurisdiction of a lower court despite having issued in a higher court. The order confines the plaintiff to costs on the lower-court scale and requires the plaintiff to pay the defendant the difference between costs actually incurred in the higher court and those that would have been incurred in the appropriate lower court. (See Differential Costs Orders section)

Issue-based costs (Veolia principle)

The principle, established in Veolia Water v Fingal County Council (No. 2) [2006] IEHC 240 by Clarke J, that a successful party who elongates a trial with issues on which it ultimately fails may face a deduction from its costs award attributable to those discrete issues. The principle now operates within Section 169(1)(b) LSRA 2015 and was reinforced by the Supreme Court in ESB v Good [2025] IESC 40. (See When the Court Departs section)

Costs adjudication

The formal assessment of a bill of costs by the Office of the Legal Costs Adjudicators under Part 10 of the Legal Services Regulation Act 2015. Replaced the historic "taxation of costs" by the Taxing Master. Adjudicators apply the reasonableness factors in Schedule 1 of the 2015 Act when determining how much of a bill is recoverable. 2024 data showed approximately 58% of claimed costs allowed across cases proceeding to full determination. (See Medical Negligence section)

Table of Authorities

This table lists every primary authority cited in this article, organised by source category and court hierarchy.

Primary Legislation (Statutes)

Statute	Operative provisions cited	Source
Legal Services Regulation Act 2015 (Act 65/2015)	ss.150, 168, 169, 141; Schedule 1; Part 10	Office of the Attorney General
Civil Liability and Courts Act 2004 (Act 31/2004)	s.17 (incl. s.17(2A) catastrophic injury)	Office of the Attorney General
Personal Injuries Assessment Board Act 2003 (Act 46/2003)	s.51A (inserted by PIAB (Amendment) Act 2007 (Act 35/2007))	Law Reform Commission
Mediation Act 2017 (Act 27/2017)	ss.14, 21	Office of the Attorney General
Courts Act 1981 (Act 11/1981)	s.17 (as amended by s.14 Courts Act 1991)	Office of the Attorney General

Statutory Instruments and Court Rules

Instrument	Effect cited	Source
S.I. No. 584 of 2019, Rules of the Superior Courts (Costs) 2019	Recast of Order 99 of the Rules of the Superior Courts; effective 3 December 2019	Irish Statute Book
S.I. No. 12 of 2008	Historical pre-LSRA position on Calderbank exclusion from personal injury	Irish Statute Book
S.I. No. 186 of 2022, Rules of the Superior Courts (Lodgment and Tender) 2022	21-day medical report window for lodgments under Order 22; effective 26 April 2022	Irish Statute Book
Order 99 of the Rules of the Superior Courts (Costs)	Costs allocation regime; Rule 3(2) Calderbank codification	Courts Service of Ireland
Order 22 of the Rules of the Superior Courts	Payment into court, tender, and acceptance procedures	Courts Service of Ireland

Case Law — Supreme Court of Ireland (Binding)

Case	Citation & ECLI	Court / Coram	Date	Source
Delaney v Personal Injuries Assessment Board, The Judicial Council, Ireland & AG	[2024] IESC 10 ECLI:IE:IESC:2024:10	Supreme Court (7 judges; 5:2 majority); Charleton J presiding	9 April 2024	BAILII (IESC 2024)
Little v Chief Appeals Officer, Social Welfare Appeals Office & Minister for Social Protection	[2024] IESC 53 ECLI:IE:IESC:2024:53	Supreme Court (5 judges unanimous); Murray J	19 November 2024	BAILII
Electricity Supply Board v Good & Ors	[2025] IESC 40 ECLI:IE:IESC:2025:40	Supreme Court (5 judges); O'Donnell C.J., Dunne, Woulfe, Murray, Donnelly JJ	8 October 2025	BAILII (recent additions)
Higgins v The Irish Aviation Authority	[2022] IESC 13 ECLI:IE:IESC:2022:13	Supreme Court; MacMenamin J (majority)	7 March 2022	BAILII
MN v SM (costs)	[2005] IESC 30; [2005] 4 IR 461	Supreme Court	2005	Supreme Court of Ireland
O'Connor v Bus Átha Cliath	[2003] 4 IR 459	Supreme Court; Hardiman J	2003	Irish Reports

Case Law — Court of Appeal (Binding on High Court and below)

Case	Citation & ECLI	Coram / Judge	Date	Source
Nolan v County Registrar for the County of Waterford & Ors	[2025] IECA 110 ECLI:IE:IECA:2025:110	Court of Appeal; Hyland J	May 2025	BAILII
Milmoe v Chatzis & Anor	[2025] IECA 149 ECLI:IE:IECA:2025:149	Court of Appeal	2025	BAILII
McKeown v Crosby & Vocella	[2021] IECA 139 ECLI:IE:IECA:2021:139	Court of Appeal; Noonan J	11 May 2021	BAILII
Higgins v The Irish Aviation Authority (Costs)	[2020] IECA 277 ECLI:IE:IECA:2020:277	Court of Appeal; Murray J	9 October 2020	BAILII
Higgins v The Irish Aviation Authority (Substantive)	[2020] IECA 157 ECLI:IE:IECA:2020:157	Court of Appeal; Binchy J	16 June 2020	BAILII
Chubb European Group SE v The Health Insurance Authority	[2020] IECA 183; [2022] 2 IR 734 ECLI:IE:IECA:2020:183	Court of Appeal; Murray J (Whelan, Power JJ concurring)	8 July 2020	BAILII
E&F v G&H	[2021] IECA 108 ECLI:IE:IECA:2021:108	Court of Appeal	2021	BAILII
Moin v Sicika & O'Malley v McEvoy	[2018] IECA 240 ECLI:IE:IECA:2018:240	Court of Appeal; Peart J	2018	BAILII
Shannon v O'Sullivan (Costs)	[2016] IECA 105	Court of Appeal; Irvine J	13 April 2016	BAILII

Case Law — High Court (Persuasive)

Case	Citation & ECLI	Judge	Date	Source
Higgins v Coleman and Motor Insurers' Bureau of Ireland	[2026] IEHC 144 ECLI:IE:IEHC:2026:144	O'Higgins J	23 January 2026	High Court of Ireland
Quinlan v Quinlan	[2025] IEHC 170 ECLI:IE:IEHC:2025:170	Egan J	March 2025	High Court of Ireland
Byrne, Hyslop & Kerrigan v Arnold	[2024] IEHC 308 ECLI:IE:IEHC:2024:308	Kennedy J	5 June 2024	High Court of Ireland
O'Malley v Hermann & Anor	[2022] IEHC 9 ECLI:IE:IEHC:2022:9	Coffey J	12 January 2022	BAILII
Gravity Construction Ltd v Total Highway Maintenance Ltd	[2021] IEHC 19 ECLI:IE:IEHC:2021:19	Simons J	26 January 2021	BAILII
Daly v Ardstone Capital Ltd	[2020] IEHC 345 ECLI:IE:IEHC:2020:345	High Court	2020	BAILII
Dardis v Poplovka	[2017] IEHC 249	Barr J	28 April 2017	BAILII
Veolia Water UK plc v Fingal County Council (No. 2)	[2006] IEHC 240; [2007] 2 IR 81	Clarke J	2006	BAILII
Grimes v Punchestown Developments Company Ltd	[2002] 4 IR 515	Denham J	2002	Irish Reports

Case Law — English (Persuasive Only)

Case	Citation	Court	Note
Calderbank v Calderbank	[1976] Fam 93; [1975] 3 All ER 333	English Court of Appeal; Cairns LJ, Scarman LJ, Sir Gordon Willmer	Origin of the Calderbank doctrine
Iraqi Civilians v Ministry of Defence	[2018] EWHC 690 (QB); [2018] 2 Costs LR 213	English High Court; Leggatt J	Referenced in ESB v Good; relevant to issue-based costs reasoning

Secondary Sources and Practitioner Commentary

Source	Subject
Legal Services Regulatory Authority, Your Legal Costs Duties	Part 10 LSRA 2015 practitioner obligations on cost transparency
Office of the Legal Costs Adjudicators, Courts Service of Ireland	OLCA Annual Reports; Register of Determinations; Practice Directions
Office of the Legal Costs Adjudicators, Annual Report 2024 (published July 2025)	912 applications filed (€145.3m claimed); 179 adjudicated; medical negligence and road traffic statistics
Irish Times, "Adjudicators cut almost €15m legal costs from €35m claimed in 179 cases" (8 July 2025)	Reporting of OLCA Annual Report 2024 statistics

References

1. Legal Services Regulation Act 2015, Act No. 65 of 2015, Office of the Attorney General, irishstatutebook.ie
2. Legal Services Regulation Act 2015, Section 169 (Revised), Law Reform Commission, revisedacts.lawreform.ie
3. Legal Services Regulation Act 2015, Section 168, irishstatutebook.ie
4. Civil Liability and Courts Act 2004, Act No. 31 of 2004, irishstatutebook.ie
5. Civil Liability and Courts Act 2004, Section 17 (Revised), Law Reform Commission
6. Personal Injuries Assessment Board Act 2003, Section 51A (Revised), Law Reform Commission
7. Mediation Act 2017, Act No. 27 of 2017, irishstatutebook.ie
8. Courts Act 1981, Section 17 (as amended by Section 14 of the Courts Act 1991), irishstatutebook.ie
9. Order 99 of the Rules of the Superior Courts, Costs, Courts Service of Ireland
10. Order 22 of the Rules of the Superior Courts, Payment Into and Out of Court and Tender, Courts Service of Ireland
11. S.I. No. 584 of 2019, Rules of the Superior Courts (Costs) 2019, irishstatutebook.ie
12. S.I. No. 12 of 2008, irishstatutebook.ie (historical, pre-LSRA position)
13. Higgins v The Irish Aviation Authority [2020] IECA 277 (ECLI:IE:IECA:2020:277) (Murray J, 9 October 2020), BAILII
14. Higgins v The Irish Aviation Authority [2020] IECA 157 (ECLI:IE:IECA:2020:157) (Binchy J, 16 June 2020), BAILII
15. Higgins v The Irish Aviation Authority [2022] IESC 13 (ECLI:IE:IESC:2022:13) (Supreme Court, 7 March 2022), BAILII
16. Chubb European Group SE v The Health Insurance Authority [2020] IECA 183 (ECLI:IE:IECA:2020:183); [2022] 2 IR 734 (Murray J, 8 July 2020), BAILII
17. McKeown v Crosby & Vocella [2021] IECA 139 (ECLI:IE:IECA:2021:139) (Noonan J, 11 May 2021), BAILII
18. Veolia Water UK plc v Fingal County Council (No. 2) [2007] 2 IR 81; [2006] IEHC 240 (Clarke J), BAILII
19. Shannon v O'Sullivan [2016] IECA 105, BAILII
20. Gravity Construction Ltd v Total Highway Maintenance Ltd [2021] IEHC 19 (ECLI:IE:IEHC:2021:19) (Simons J, 26 January 2021), BAILII
21. O'Malley v Hermann & Anor [2022] IEHC 9 (ECLI:IE:IEHC:2022:9) (Coffey J, 12 January 2022), BAILII
22. MN v SM (costs) [2005] IESC 30 (ECLI:IE:IESC:2005:30); [2005] 4 IR 461, Supreme Court of Ireland
23. Moin v Sicika and O'Malley v McEvoy [2018] IECA, Court of Appeal of Ireland
24. Little v Chief Appeals Officer & Ors [2024] IESC 53 (ECLI:IE:IESC:2024:53) (Murray J, 19 November 2024), Supreme Court of Ireland
25. Electricity Supply Board v Good & Ors [2025] IESC 40 (ECLI:IE:IESC:2025:40) (Supreme Court 5-judge bench, 9 October 2025), Supreme Court of Ireland
26. Quinlan v Quinlan [2025] IEHC 170 (ECLI:IE:IEHC:2025:170) (Egan J, March 2025), High Court of Ireland
27. Nolan v County Registrar [2025] IECA 110 (ECLI:IE:IECA:2025:110) (Hyland J, May 2025), Court of Appeal of Ireland
28. Higgins v Coleman and Motor Insurers' Bureau of Ireland [2026] IEHC 144 (ECLI:IE:IEHC:2026:144) (O'Higgins J, 23 January 2026), High Court of Ireland
29. Daly v Ardstone Capital Ltd [2020] IEHC 345 (ECLI:IE:IEHC:2020:345), High Court of Ireland
30. E&F v G&H [2021] IECA 108 (ECLI:IE:IECA:2021:108), Court of Appeal of Ireland
31. Word Perfect Translation Services Ltd v Minister for Public Expenditure (Donnelly J, Court of Appeal), Court of Appeal of Ireland
32. Dardis v Poplovka (Barr J), High Court of Ireland
33. Delaney v PIAB [2024] IESC 10 (ECLI:IE:IESC:2024:10) (Charleton J presiding, 9 April 2024), Supreme Court of Ireland
34. Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333 (English Court of Appeal; Cairns LJ, Scarman LJ, Sir Gordon Willmer)
35. Iraqi Civilians v Ministry of Defence [2018] EWHC 690 (QB); [2018] 2 Costs LR 213, English High Court (referenced in ESB v Good)
36. Legal Services Regulatory Authority, Your Legal Costs Duties, Part 10 LSRA 2015 practitioner obligations
37. Office of the Legal Costs Adjudicators, Office of the Legal Costs Adjudicators, Courts Service of Ireland
38. Byrne, Hyslop & Kerrigan v Arnold [2024] IEHC 308 (ECLI:IE:IEHC:2024:308) (Kennedy J, 5 June 2024), High Court of Ireland