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(c)
The defence of tender before action
A minor point arises on a different plane in relation to the pleading of a defence.
Presently, under O 18 r 16, a defendant who wishes to plead the defence of tender
before action is allowed to do so if he pays the sum tendered into court. However, the
case law establishes that this common law defence only applies to liquidated claims
and not to claims for unliquidated damages.
The CPR have extended this defence
so that it is available "whether or not a
specified amount is claimed." A defendant wishing to rely on this defence must pay
into court the amount which he says was tendered.
As this may facilitate early
settlement, the Working Party recommends that a similar rule be adopted.
Recommendation 25: The defence of tender before action should be extended
to apply to claims for unliquidated damages.
Notes
Davys v Richardson (1888) 21 QBD 202 at 204-5; HKCP 2002, 18/16/1.
Re-named "tender before claim", see White Book 16.5.6.
CPR 37.3. The sum so paid in also counts as a Part 36 payment.
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