Calderbank offers in financial remedy proceedings

What is a Calderbank offer?

A Calderbank offer is a settlement offer made in financial remedy proceedings on a without prejudice save as to costs basis. It takes its name from the case Calderbank v Calderbank [1975].

The key features are:

• It is without prejudice — the other party cannot refer to it during the substantive hearing
• It is save as to costs — it can be disclosed to the judge when costs are being decided, after the main issues have been resolved
• If the other party rejects a reasonable Calderbank offer and ends up with no better outcome at trial, the court can order them to pay your costs from the date they unreasonably rejected the offer

Why Calderbank offers matter

Financial remedy proceedings are generally costs-neutral — each party pays their own costs regardless of the outcome. This is the default position under the Family Procedure Rules.

However, the court has a discretion to depart from this where there has been conduct that makes it appropriate to do so. Unreasonably refusing a Calderbank offer that turns out to be as good or better than the final judgment is such conduct.

Making a Calderbank offer:

• Demonstrates good faith and a willingness to settle
• Puts pressure on the other party to engage seriously with settlement
• Protects you against costs if they unreasonably reject it

Open offers vs Calderbank offers

Calderbank offer — without prejudice save as to costs. Not shown to the final hearing judge until after judgment. Used to protect against costs.

Open offer — can be referred to at any hearing, including the final hearing. Useful where you want the judge to know you’re being reasonable, but carries the risk that your position is disclosed.

In most cases, Calderbank offers are more appropriate than open offers in contested proceedings. Your solicitor can advise on the right approach in your specific case.

When to make a Calderbank offer

Offers can be made at any stage, but the most significant points are:

Before the FDR — an offer made before the FDR is shown to the FDR judge and helps set the framework for settlement discussions. If the other party rejects a reasonable pre-FDR offer and the case proceeds to a final hearing where they do no better, the costs consequences can be significant.

After the FDR — if the case doesn’t settle at the FDR but you remain willing to settle, a Calderbank offer after the FDR keeps the costs protection running.

Before the final hearing — a final offer made shortly before the hearing can concentrate minds and, if rejected, provides strong costs protection.

What makes a good Calderbank offer

A Calderbank offer should:

• Be specific and detailed — set out exactly what you’re proposing on each issue
• Be genuinely reasonable — an unrealistic offer won’t attract costs protection
• Be made in writing and clearly marked “without prejudice save as to costs”
• Include a reasonable deadline for acceptance
• Be kept on file — you’ll need it when the court considers costs

The costs consequences

At the end of a final hearing, when the judge is considering costs, you (or your solicitor) disclose the Calderbank offer. The judge then compares:

• What you offered
• What the other party ended up with

If your offer was as good as or better than the judgment, and the other party unreasonably refused it, the court may make a costs order in your favour — typically from the date the offer should have been accepted.

This can significantly reduce your overall financial exposure in contested proceedings.

Calderbank offers and the FDR

At the FDR, all without-prejudice offers — including Calderbank offers — are shown to the FDR judge to help them give their indication. This is the only hearing at which these offers are disclosed.

The FDR judge cannot hear the final hearing. So disclosing your Calderbank offer at the FDR does not affect the final hearing judge’s view of the case.