Calderbank offers

by Practical Law Dispute Resolution in association with A&O Shearman

A practice note that provides guidance on Calderbank offers, a type of settlement offer made on a "without prejudice save as to costs" basis in England and Wales. This note explores the crucial differences between Calderbank offers and Part 36 offers, highlighting that while Calderbank offers provide greater flexibility, their costs consequences are determined at the court's discretion, unlike the prescribed outcomes under Part 36. It contrasts the broad judicial discretion under Civil Procedure Rule (CPR) 44.2 with the self-contained code of CPR Part 36. The practice note examines the evolving use of these offers and identifies specific circumstances where a Calderbank offer may still be a valuable strategic tool in dispute resolution, including in non-money claims and arbitration proceedings. Guidance is also provided on the practical implications of making, accepting, or responding to a Calderbank offer, such as the effect of a second offer and the risks of making a counter-offer, which could lead to the loss of an opportunity to settle.