Public interest best served in allowing accountancy firm leave to offer a tender to counterclaim

Tenders – accountancy firm seek leave to allow their indemnifiers to make an offer of payment to the defendant and counterclaimant in lieu of lodging money in court - proceedings initiated in 2003 – on 17th July, 2015 parties were given the hearing date of 1st June, 2016, with an estimated duration of four weeks - parties agreed that the accountancy firm be permitted to make an offer of a late payment in lieu of lodgement to be made up to and including the 1st December, 2015 – expressed or implied that the action was ready for hearing - listed for mention on the 17th December, 2015, so that the court could be assured that the case was ready and was proceeding - referred to mediation in the mean time - not possible to hold the mediation prior to late January, 2016 - outside the date permitted by the Court for the making of a late payment in lieu of a lodgement - mediation was not successful – accountancy firm did not wish to jeopardise the mediation process so no offer of payment in lieu of lodging money into Court was made before the initial deadline - first indication of their intention to issue an application to give their indemnifiers leave to make an offer of payment in lieu of lodging money into Court was on the 24th March, 2016 – argued that there was no agreement that the proposed mediation could be followed by a lodgement - there is no provision or practice for the making of lodgement or offers in lieu after a mediation has taken place – if the accountancy firm wished to extend the time for the making of a lodgement until after the mediation, it could have raised this point at any stage prior to the mediation - subvert the purpose of mediation - concern that an opponent might use the information obtained through mediation in order to make a precisely measured lodgement then the approach to the mediation would inevitably be more guarded and the prospect for its success would be reduced – argued that he conduct of the mediation in these proceedings has given the accountancy firm an advantage - in a stronger position now to make an offer by way of tender – whether a significant and obvious litigation disadvantage or advantage arises to either party on foot of the unsuccessful mediation - refused to confirm what the level of the tender offer will be - mediation process – the resources of the Court - public interest is best served by allowing defendants to proffer to the plaintiff utilising the facility of the Courts a sum that the defendant considers adequately meets the plaintiff’s claim – Court found that there cannot be a bar to defendants in an action making an offer of tender or a lodgement – nothing special or untoward about the events which took place in the mediation as between the parties herein – Court did not accept the proposition that simply because the mediation took place and was unsuccessful that this Court ought to refuse the relief as sought - public interest is best served by allowing the indemnifiers of the accountancy firm, even at the eleventh hour, to make an offer by way of tender for a sum that they say adequately meets the claim - subject always to the maintenance of a fair and just procedure which does not allow for one party to gain an unfair litigation advantage by its own action or inaction - risk of unfairness can be overcome by the exercise by this Court of its inherent discretion in providing for, as a condition for the granting of the relief as sought, an order to the effect that if the offer by way of tender is accepted the counter-claimant is to be entitled to its costs to be taxed in default of agreement to include all costs incurred in going to the hearing as scheduled for the 1st day of June, 2016.