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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…

A sample Calderbank offer is attached to this Guidance Note as Appendix 1. STRATEGY IN MAKING THE CALDERBANK OFFER. When To Make The Offer? A party looking to settle a claim should make a Calderbank offer as early as possible so that it can obtain maximum costs protection in the arbitration. How Much To Offer? The recent Victorian Supreme Court case of Victorian WorkCover Authority v O’Brien 2017 VSC 68 affirms the relevant factors when assessing the reasonableness of rejecting a Calderbank offer. Importantly, it supports prior authority that a Calderbank offer to withdraw and bear own costs may be characterised as a demand to capitulate which, in certain circumstances,.

For the benefit of non-lawyers (and perhaps also those who have recently qualified) I will briefly explain the concept of the Calderbank offer.

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.

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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.

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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.

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Settlement offers take the form of either Calderbank letters or Offers of compromise under the UCPR.

Offers of compromise under the UCPR
- To qualify as offer of compromise under the UCPR, offer must:
  Explicitly state that they comply with the UCPR: r 20.26 (3)
  Be exclusive of costs: r 20.26 (2).
  Cannot be withdrawn before the time specified: r 20.26 (11).
- Result: unless in the case of 'exceptional circumstances' (r 42.14), if a plaintiff offers a compromise which is rejected and then is awarded a higher amount than he offered by the court, he will receive costs on an indemnity basis from the day of the offer.
  Offeree has the onus of proving exceptional circumstances.
Calderbank letters:
- Rejected Calderbank letters do not necessarily result in indemnity costs orders - indemnity costs will be awarded only if (:SMEC v Campbelltown City Council):
  The offer contained a genuine compromise.
  'Walk away' or 'trivial' offers are usually not considered genuine Offers: Kain v Mobbs'; Miwa v Siantan Properties.
  A waiver of interest can constitute a compromise: Manly Council v Byrne (No 2).
  The rejection was so unreasonable to the degree that it 'warrants departure from the ordinary rule as to costs'. In determining this, relevant considerations include (:Miwa v Siantan Properties):
  Promptness of the application.
  Whether there was sufficient time to consider?
  The extent to which the compromise was fair.
  Whether there was adequate information given to consider the offer?
  At what stage was the offer made? Have there been any developments since the offer was made?
  What were the prospects of success?
  Whether any conditions were attached to the offer and whether they were unreasonable?
- Failed Offers of Compromise will still serve as Calderbank letters: Kain v Mobbs.

This topic is within Resolving Civil Disputes.

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [14.210]-[14.265].

Introduction

^[1] Litigants are generally encouraged to reach a settlement as opposed to pursue their claims in court. A party who unreasonably rejects a genuine settlement offer might be liable to cost consequences (usually having to pay costs on an indemnity basis. The two methods to offer a settlement are the UCPR offer of compromise and its common law relative, Calderbank letters.

Offers of compromise are strictly governed by the UCPR, which means that the court has less discretion in issuing costs orders etc.
Calderbank letters are offers to compromise which are marked 'without prejudice save as to costs'. They lack the certainty and formal structure of the UCPR offers of compromise, and involve a larger degree of judicial discretion as to costs.

s 73 of the CPA allows the court to determine whether a settlement has already been reached by the parties, and to enforce it.

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Calderbank Letter Template Microsoft

Calderbank Letter Template Word

Contents

Required Reading

Introduction