News and Insights
11 December 2019
In Jersey the use of Calderbank offers (named after an English Court of Appeal case in 1975) are widespread.
However, not all clients really understand what they are. The notes below will hopefully help you.
A Calderbank offer is sometimes expressed by lawyers in correspondence as ‘without prejudice save as to costs’.
The court can consider any Calderbank offers made when considering legal costs at the end of a final hearing. In the event that the final order made by the court is more advantageous to a party who made a Calderbank offer which was rejected by the other side, it is open to the offeror to invite the court to make an order for costs against the other party on the basis that a fair offer was made and rejected by them. The court will normally look at awarding costs from the date of the Calderbank to the final judgment by the court. As such they can be powerful weapons.
- Calderbank offers are only seen by the court a the conclusion of the proceedings;
- It can be important that your lawyer makes the offer at the most appropriate stage of the proceedings;
- Calderbank offers only have effect after full financial disclosure has been made;
- If there has been litigation misconduct by the offeror the court may ignore the Calderbank;
- Ensure that enough time was given in the offer for the other party to accept or reject it. 14 days is the usual minimum and after that time the offer can be withdrawn;
- That the other party must have the financial resources to pay the costs from their settlement or otherwise.
It is also essential that the Calderbank is:
- Clearly expresses to be ‘without prejudice save as to costs’;
- Addressed to the other party or their lawyer;
- Is clear and precise and covers all assets;
- Is a genuine compromise that warrants consideration;
- It is clear that it will be used to bring the offer to the court’s attention on costs;
- Can be clearly rejected or accepted.
In financial claims in divorce, your lawyer at Viberts will speak to you about when to make a Calderbank offer and the precise terms of it. Making the right offer at the right time can be very worthwhile both from a negotiating point of view and if you proceed to a final hearing, an eventual costs award to you.