The more frequently that costs penalties are imposed against the Plaintiff, the more often Calderbank offers will be taken seriously. These subtle shifts in judicial conduct have been noted not only by Defendant’s legal advisors, but also by those advising Plaintiffs. They are becoming more commonly used because the Courts have demonstrated a willingness to impose costs penalties on Plaintiffs who do not accept reasonable offers or refuse outright to engage in negotiations. Initially, Calderbank offers were used only in matrimonial proceedings and take their name from a 1975 case of Calderbank V Calderbank, but they are now more common in general litigation.
Any Calderbank offer should be unequivocal in its terms in other words, it should deal with the issue of how the costs of the proceedings to date are to be treated, it should have a date by which the offer has to be accepted, and it should make clear the consequences of not accepting the offer. It should be marked “ without prejudice save as to costs”, or else it may be shown to the Court at the outset, which could influence the Court’s views on both liability and quantum.
As such, it can be a very useful tool for both insured and uninsured Defendants.Ī Calderbank offer is a letter written by one party, generally the Defendant, to the Plaintiff, making an offer to resolve the litigation. Whereas lodgements and tenders can only be made at certain times after the issue of proceedings, a Calderbank offer can be made both before the litigation commences and during the course of a Hearing. If the offer is not accepted and a Court subsequently awards less than the sum offered, all of the legal costs from the date of the offer are generally awarded to the Defendant. Lodgements, tenders and Calderbank offers are methods by which a Defendant can make an offer to settle a Plaintiff’s claim. How do you stop legal costs from mounting in litigation? What weapons are available to a reasonable Defendant who wishes to shut down litigation at an early stage? How does a Defendant transfer the risk of legal costs to a Plaintiff?