13 - Tenders

Summary

A tender is a judicial offer by a party to pay a part (or in rare cases all) of what their opponent is asking for after a court action is raised. It cannot be made pre-litigation. It differs from extra-judicial, or informal, offers in that a tender carries potential expenses implications if not accepted, or not accepted quickly enough. The use of a tender is designed to put pressure on a pursuer to settle. To be effective in that regard, the tender has to be tempting to a pursuer having regard to the strength of the pursuer’s case and a realistic view of its value.

The tender can be made in the defences where part of the claim is admitted and averments are made tendering the sum admitted to be due. This method is now infrequently used. The much more commonly encountered form of tender is where a defender lodges a minute of tender, without any admission of liability and reserving their whole rights and pleas.

Various different types of tender are discussed below. Unlike pursuers’ offers, tender procedure is not enshrined in rules of court but instead the common law. Tenders usually arise in personal injury or payment actions but can potentially be made in any type of action. A tender does not require to include a monetary offer. A tender has been made in an action of defamation by offering a full retraction of the defamatory remarks but making no offer of damages.

The courts encourage settlement of actions and have taken the approach of approving innovative or novel wording in tenders.

Lord McCluskey in Ferguson v MacLennan Salmon Co Ltd expressed the view ‘[t]he court will always encourage the settlement of actions rather than their continuation till resolved by the court’. This was the context of:

‘the creation of minutes … fashioned on traditional minutes of tender if they are designed to remove from one party the risk of having to pay expenses for a litigation which he can demonstrate would have been unnecessary in whole or in part if the offer contained in the minute had been accepted’.

There is no prescribed form of tender, although Appendix 4 contains suggested styles. However, there are two basic requirements for a tender to be effective.