For most of my career as a practising family lawyer the ‘Calderbank offer' was a very commonly used tool in the resolution, or attempted resolution, of financial remedy disputes following divorce. Much to the disappointment of many family lawyers it was abolished in 2006, but it seems that it is not quite dead after all…
- The Calderbank offer (named after a 1975 case of that name) is a proposal that is made without prejudice save as to costs. This means that if the proposal is not beaten by the other party then the maker of the proposal can show the proposal to the court and request the court to order the other party to pay their costs from the date of the offer.
- One wouldn't expect a offer in the form that has been made to state it is a Calderbank proposal. Heading the letter 'without prejudice save as to costs' is enough to make it a Calderbank offer. 1.1 - Calderbank is not a proposal, it is an offer. A Calderbank is a cost-protection measure.
For the benefit of non-lawyers (and perhaps also those who have recently qualified) I will briefly explain the concept of the Calderbank offer.
The binding of isaac: rebirth complete bundle crack. A Calderbank letter can be oral or written, and requires the following elements. The offer must be marked 'without prejudice save as to costs': Meaning the contents of the letter can only be used in Court with respect to the question of costs.
A proposal to settle a case (and here, for the sake of simplicity, I am just referring to financial remedy cases) can either be an ‘open' proposal or a ‘without prejudice‘ proposal. An open proposal can be shown to the court, by either side, which means that the party making the proposal is committed to it and cannot withdraw it and then seek more. A without prejudice proposal, on the other hand, cannot be shown to the court, unless the proposal is accepted. Accordingly, the maker of the without prejudice proposal can still seek a better settlement at court if the proposal is not accepted.
The Calderbank offer (named after a 1975 case of that name) is a proposal that is made without prejudice save as to costs. This means that if the proposal is not beaten by the other party then the maker of the proposal can show the proposal to the court and request the court to order the other party to pay their costs from the date of the offer, on the basis that those costs would not have been incurred if the offer had been accepted.
However, the Calderbank offer was abolished when new costs rules were introduced in 2006. Open offers were to become the norm and the starting point in all financial remedy cases is that there should be no order as to costs – i.e. each party should pay their own costs.
As I indicated above, the Calderbank offer was popular with many family lawyers. Indeed only recently Resolution, the association of family lawyers, debated whether it should be reinstated and fifty per cent of those who took part in the debate said that it should.
But a judgment published the other day (although handed down back in April) indicates that we have not seen the last of Calderbank offers (at least in respect of financial remedy claims) after all.
WD v HD concerned an appeal by a wife against the variation of a maintenance/school fees order. I don't need to go into the details of the case here, but the issue arose as to whether or not a Calderbank offer is admissible in relation to an appeal. Considering the matter, Mr Justice Moor looked at the current costs rules, which say that no offer to settle which is not an open offer to settle is admissible at any stage of the proceedings (except as provided in relation to financial dispute resolution hearings). He concluded that the rule only referred to first instance proceedings, and therefore did not apply to appeals. A Calderbank offer is therefore admissible in relation to an appeal.
Mr Justice Moor added the important point that: 'By coming to that conclusion, there is the added advantage that litigants are able to protect themselves in appeals where the costs of the appeal can be totally disproportionate to the amount at stake.'
So, reports of the death of Calderbank offers in relation to financial remedies cases were, it seems, premature. On the other hand whether we will see their full return (as many would like) is, on the other hand, another matter.
The full report of WD v HD can be read here.
A Calderbank offer (otherwise known as a 'Without Prejudice Save as to Costs') is an offer to settle a dispute, putting the other side on notice that, if the dispute goes before any court and the outcome is less favourable to the other side compared to the Calderbank Offer being made, then the side making the offer is entitled to more of their costs being recovered. This is because, if the other side had accepted the offer, then they would have been better off and neither side would have had to spend money taking the matter to court.
However, the Calderbank offer was abolished when new costs rules were introduced in 2006. Open offers were to become the norm and the starting point in all financial remedy cases is that there should be no order as to costs – i.e. each party should pay their own costs.
As I indicated above, the Calderbank offer was popular with many family lawyers. Indeed only recently Resolution, the association of family lawyers, debated whether it should be reinstated and fifty per cent of those who took part in the debate said that it should.
But a judgment published the other day (although handed down back in April) indicates that we have not seen the last of Calderbank offers (at least in respect of financial remedy claims) after all.
WD v HD concerned an appeal by a wife against the variation of a maintenance/school fees order. I don't need to go into the details of the case here, but the issue arose as to whether or not a Calderbank offer is admissible in relation to an appeal. Considering the matter, Mr Justice Moor looked at the current costs rules, which say that no offer to settle which is not an open offer to settle is admissible at any stage of the proceedings (except as provided in relation to financial dispute resolution hearings). He concluded that the rule only referred to first instance proceedings, and therefore did not apply to appeals. A Calderbank offer is therefore admissible in relation to an appeal.
Mr Justice Moor added the important point that: 'By coming to that conclusion, there is the added advantage that litigants are able to protect themselves in appeals where the costs of the appeal can be totally disproportionate to the amount at stake.'
So, reports of the death of Calderbank offers in relation to financial remedies cases were, it seems, premature. On the other hand whether we will see their full return (as many would like) is, on the other hand, another matter.
The full report of WD v HD can be read here.
A Calderbank offer (otherwise known as a 'Without Prejudice Save as to Costs') is an offer to settle a dispute, putting the other side on notice that, if the dispute goes before any court and the outcome is less favourable to the other side compared to the Calderbank Offer being made, then the side making the offer is entitled to more of their costs being recovered. This is because, if the other side had accepted the offer, then they would have been better off and neither side would have had to spend money taking the matter to court.
The history behind the Calderbank offer goes back to an English case in 1975 between Mr and Mrs Calderbank. It was summed up nicely by the court in a case called Martel:
It was in a legislative vacuum that the English Court of Appeal made its ruling in Calderbank. Mrs. Calderbank was seeking a declaration under the Married Women's Property Act, 1882, not recovery of debt or damages. Before trial, she swore an affidavit declaring herself willing to accept a certain result in the litigation going on between herself and Mr. Calderbank. Mr. Calderbank did not agree and the case went to trial.
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The judgment was less favourable to him than what Mrs. Calderbank had been willing to give him. It was held that Mrs. Calderbank was entitled to her costs, as from the date on which she made her willingness to settle known. The Court also suggested that a letter like the one used in this case by the plaintiff should sound in costs. What has become known as a Calderbank letter developed into a recognised procedure to set up an award of costs based on a willingness to settle.
In simple terms, when you make or reject a Calderbank offer, you are taking an educated bet. In terms of employment matters, when an employee makes a Calderbank offer, they are betting that the amount the ERA will award will be more than the employee's offer amount. If the employee is right, then they can apply to have more of their costs paid by the employer. However, should an employer make a Calderbank offer, then they are betting that the ERA will award the employee less than the amount they are offering.
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Should the employer be right, then, even though the employee may have won the battle of that case, the employee may actually lose the war as they can have costs awarded against them. This is because the employee would have been better off if they had accepted the employer's offer and the employer would not have had to spend money on defending the claim.
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Accordingly, Calderbank offers should not be made or rejected prior to taking employment law advice, as the outcome can have major implications on both sides. Do contact us with further queries you may have on this matter.
