Calderbank Offers

what is a calderbank offer?

A Calderbank offer is a proposal made “without prejudice save as to costs” in financial remedy proceedings. This means that it cannot be disclosed to the court as it is “without prejudice”, unless costs are being considered.

Calderbank offers have historically been used by the family court to influence the making of costs orders, but they have largely been replaced by open offers since 2006. However, they remain relevant in specific applications such as interim orders, appeals, and enforcement proceedings. Courts may consider Calderbank offers when deciding whether a party should bear the other’s legal costs due to unreasonable conduct.

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How were calderbank offers established?

Named after Calderbank v Calderbank [1975], this case established the idea that if one party makes an offer to settle on terms that are rejected and the court later makes an order that is less generous than that offer, the court may consider this fact when considering whether to impose costs. The premise is that a party that unreasonably refuses to settle should be held liable for the other party’s expenditures incurred as a result of being compelled to pursue litigation. 

calderbank offers pre-2006

Prior to 2006, the use of Calderbank offers was prevalent in family procedures. The courts would often impose costs orders at the end of proceedings after considering the parties’ individual Calderbank proposals, and whether it was reasonable for a party to have rejected such an offer. However, with the implementation of the Family Proceedings (Amendment) Rules 2006, Calderbank offers have become restricted in their use in financial remedy cases and are now only applicable in specific types of family proceedings. 

calderbank offers post-2006

Since April 2006, the general rule has been that “the court will not make an order requiring one party to pay the costs of another party” within financial remedy proceedings (r. 28.3(5) FPR 2010).  

The only exception to this rule is that the court may make an order for costs against a party where appropriate, regarding their conduct in relation to the proceedings. This includes: 

• Any failure to comply with the rules, order or a practice direction; 

• Any open offer to settle; 

• Whether it was reasonable for a party to raise, pursue or contest any issue; 

• The matter in which a party has pursued or responded to the application or a particular allegation or issues; 

• Any other relevant aspect of a party’s conduct in relation to the proceedings which the court considers relevant; and 

• The financial effect on the parties of any costs order (r28.3(7)). 

Except at the FDR hearing, any settlement offer that is not an open offer is inadmissible in financial remedy proceedings and will not be considered by the court when determining costs. 

Are Calderbank offers currently being used in family law at all? 

Calderbank provisions still apply to several financial applications, including interim orders, maintenance pending suit, preliminary issues, notices to show cause, Legal Services Orders, joinder of third parties or interveners, Schedule 1 to the Children Act 1989, applications to set aside a financial remedy order, appeals, and enforcement proceedings. 

In these applications, the starting point is that the parties have a clean slate regarding costs. The court has broad discretion to make a costs order and will consider Calderbank provisions. As in civil proceedings, the default position is that costs will "follow the event," although this can be adjusted based on the case’s circumstances. 

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