February 2025 Case Summary: Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333 (EWCA)
Sunday, 16 Mar 2025, 16:29
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Edited by Gayle Cosgrove, Monday, 21 Apr 2025, 18:27
Life can get busy, which is has been, and has resulted in my being behind on my case summary posts as February was an enjoyably busy month of my own making, but now I am catching up on my case summaries.
I came across a mention of this case whilst at work, and realised that this would be a good case to do a summary for once the basics of it had been explained to me.
Citation: Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333 (EWCA)
Court: Court of Appeal
Civil Division
Date: 4th and 5th
June 1975
Procedural History: Decree of divorce in 1974.
Judges: Cairns LJ, Scarman
LJ and Sir Gordon Willmer
Legal Issues: An appeal on
the issue of Costs from the wife, following an order made by Heilbron J.
Concurring opinions: Cairns
LJ, Scarman LJ and Sir Gordon Willmer
Dissenting opinion: None
Facts:
Mr and Mrs Calderbank had been married for 17 years and had
3 children when Mrs Calderbank left the matrimonial home with the children and
filed for divorce.
The main issue revolved around the division of the matrimonial
assets, which had primarily been added to by Mrs Calderbank, which included her
£80,000 inheritance from her parents, and various properties that included a
property of £12,000 which Mr Calderbank’s parents rented, and the main matrimonial
home valued at £16,000.
For fiscal reasons, the matrimonial home had been registered
under Mr Calderbank’s name, and he continued to live there after the divorce.
The original Family Court judgment, held by Heilbron J, awarded
Mr Calderbank £10,000 out of the sale of the main matrimonial home. Mrs Calderbank appealed on the issue
of costs and put to the court that Mr Calderbank should not be entitled to
legal costs because he had rejected her reasonable pre-settlement offer.
Decision:
The court, being held by Cairns LJ, Scarman LJ and Sir Gordon
Willmer, was unanimous in their decision.
If a party has refused a reasonable offer and then goes on
to win but for less than what the reasonable offer was, then the losing part
can use that offer as evidence when it comes to determining the matter of
costs.
Mr Calderbank had refused Mrs Calderbank’s settlement offer
of the £12,000 property that was being rented by his parents, before being
awarded £10,000 from the sale of the £16,000 matrimonial home.
Due to this award being less than the settlement offer, the
burden of paying the legal costs after 14 days of the £12,000 property offer,
shifted to Mr Calderbank. Those initial 14 days had to be covered by Mrs
Calderbank.
What happened next?
This eestablished the principal of the “Calderbank offer” and is
commonly seen in litigation with the words “without prejudice, save as to costs."
This means that whilst litigation is still in progress, any
Calderbank offer cannot be referred to in court.
However, upon settlement, if the damages awarded to the winning
party are less than the settlement offer, then when both sides are negotiating
costs, the losing party has the right to bring this settlement offer to the court’s
attention, as it shows that a reasonable attempt to settle has been made, and
the additional costs that have been incurred by the losing party, are a result
of the winning side not agreeing sooner rather than later.
NOTE: a Calderbank offer is different from a Part 36 offer.
A
Calderbank offer remains between the two parties and allows various terms to be
put forward. Once accepted, it is
legally binding, but if costs issues remain unresolved and require court intervention, this is when the offer can be referred to.
A Part 36 offer is more rigid, and is designed to bring an
end to litigation, because of the severe penalty regarding costs, especially if
the award of damages does not significantly blow the original offer out
of the water.
A £1 difference is not enough, a ballpark difference is not
enough. It must be a chasm of a difference.
It can be used up to
the beginning of trial, and even when proceedings have not been issued. It must
be in writing, and there are specific things it must state. Additionally,
any previously rejected Part 36 offer that has not withdrawn, can still be
accepted months later.
February 2025 Case Summary: Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333 (EWCA)
Life can get busy, which is has been, and has resulted in my being behind on my case summary posts as February was an enjoyably busy month of my own making, but now I am catching up on my case summaries.
I came across a mention of this case whilst at work, and realised that this would be a good case to do a summary for once the basics of it had been explained to me.
Citation: Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333 (EWCA)
Court: Court of Appeal Civil Division
Date: 4th and 5th June 1975
Procedural History: Decree of divorce in 1974.
Judges: Cairns LJ, Scarman LJ and Sir Gordon Willmer
Legal Issues: An appeal on the issue of Costs from the wife, following an order made by Heilbron J.
Concurring opinions: Cairns LJ, Scarman LJ and Sir Gordon Willmer
Dissenting opinion: None
Facts:
Mr and Mrs Calderbank had been married for 17 years and had 3 children when Mrs Calderbank left the matrimonial home with the children and filed for divorce.
The main issue revolved around the division of the matrimonial assets, which had primarily been added to by Mrs Calderbank, which included her £80,000 inheritance from her parents, and various properties that included a property of £12,000 which Mr Calderbank’s parents rented, and the main matrimonial home valued at £16,000.
For fiscal reasons, the matrimonial home had been registered under Mr Calderbank’s name, and he continued to live there after the divorce.
The original Family Court judgment, held by Heilbron J, awarded Mr Calderbank £10,000 out of the sale of the main matrimonial home. Mrs Calderbank appealed on the issue of costs and put to the court that Mr Calderbank should not be entitled to legal costs because he had rejected her reasonable pre-settlement offer.
Decision:
The court, being held by Cairns LJ, Scarman LJ and Sir Gordon Willmer, was unanimous in their decision.
If a party has refused a reasonable offer and then goes on to win but for less than what the reasonable offer was, then the losing part can use that offer as evidence when it comes to determining the matter of costs.
Mr Calderbank had refused Mrs Calderbank’s settlement offer of the £12,000 property that was being rented by his parents, before being awarded £10,000 from the sale of the £16,000 matrimonial home.
Due to this award being less than the settlement offer, the burden of paying the legal costs after 14 days of the £12,000 property offer, shifted to Mr Calderbank. Those initial 14 days had to be covered by Mrs Calderbank.
What happened next?
This eestablished the principal of the “Calderbank offer” and is commonly seen in litigation with the words “without prejudice, save as to costs."
This means that whilst litigation is still in progress, any Calderbank offer cannot be referred to in court.
However, upon settlement, if the damages awarded to the winning party are less than the settlement offer, then when both sides are negotiating costs, the losing party has the right to bring this settlement offer to the court’s attention, as it shows that a reasonable attempt to settle has been made, and the additional costs that have been incurred by the losing party, are a result of the winning side not agreeing sooner rather than later.
NOTE: a Calderbank offer is different from a Part 36 offer.
A Calderbank offer remains between the two parties and allows various terms to be put forward. Once accepted, it is legally binding, but if costs issues remain unresolved and require court intervention, this is when the offer can be referred to.
A Part 36 offer is more rigid, and is designed to bring an end to litigation, because of the severe penalty regarding costs, especially if the award of damages does not significantly blow the original offer out of the water.
A £1 difference is not enough, a ballpark difference is not enough. It must be a chasm of a difference.
It can be used up to the beginning of trial, and even when proceedings have not been issued. It must be in writing, and there are specific things it must state. Additionally, any previously rejected Part 36 offer that has not withdrawn, can still be accepted months later.