The High Court ruled that an Electricity Supply Board (ESB) compensation offer to Dermot Kelleher dated 21 June 2017 was a valid unconditional offer and could be accepted at any time before the Property Arbitrator made an award. It also found that an earlier offer, made on 8 February 2017, did not meet the statutory test because it was unclear whether pre-reference costs were included in the compensation sum or covered separately.
Mr Justice Brian O’Moore delivered the judgment on 16 July 2021. The case concerned offers made during arbitration over compensation following an ESB wayleave notice served on Kelleher in August 2016. The sums offered were redacted in the judgment. Kelleher did not accept either offer.
The court said the February offer left Kelleher and his advisers unable to tell whether pre-reference costs were included in the compensation figure or fell within the offer to pay reasonable costs incurred up to the date of the letter. That uncertainty meant the offer lacked the clarity and certainty required by section 5(1) of the Acquisition of Land (Assessment of Compensation) Act 1919.
The June offer separately addressed pre-reference costs and arbitration costs. O’Moore rejected the Property Arbitrator’s stated concerns about that offer, including that an earlier offer remained unwithdrawn and that the June letter did not expressly allow the parties to agree costs without the arbitrator. The court concluded that the June letter was an unconditional offer under the Act.
The third question was whether a valid offer could be accepted at any time before an award. The judge answered yes, reasoning that the legislation set no acceptance deadline and that allowing a time limit or withdrawal at the offer-maker’s discretion would not fit its purpose of facilitating settlement. The ESB had argued that a claimant’s delay could have cost consequences.
The ruling does not mean delay is without risk. O’Moore said a claimant who does not accept within a reasonable time may be ordered to bear ESB costs incurred because of the delay. What is reasonable depends on the circumstances, including the claimant’s personal situation, access to advice, the complexity of the claim and how near the arbitration hearing is. The judge observed that five days seemed a short period in which to expect a claimant to decide.
The court answered the first stated question in the negative and the second and third in the affirmative. It listed the matter for mention on 27 July 2020 to address outstanding matters, including costs.