William Longrigg writes in the Law Society Gazette on the potential return of Calderbank offers in family proceedings

Delays in the family courts and the growing emphasis on non-court dispute resolution are increasing pressure on parties to engage constructively with settlement at an earlier stage. Against this backdrop, Calderbank offers are attracting renewed attention as a potential mechanism to encourage reasonable negotiation in financial remedy proceedings. 

Previously used as a strategic settlement tool, Calderbank offers allowed parties to make offers on a “without prejudice save as to costs” basis, with rejected offers potentially becoming relevant when the court considered costs. Following changes to the Family Procedure Rules in 2006, the general position in financial remedy proceedings moved towards “no order as to costs”, limiting the role of Calderbank offers in this context. 

The wider family law landscape is now shifting again. Non-court dispute resolution has become increasingly embedded in the framework, while proposed reforms relating to cohabitation and financial remedies on divorce indicate that further change may be ahead. Reintroducing Calderbank offers in general financial remedy proceedings could support earlier settlement, reduce costs and encourage parties to take realistic positions throughout proceedings. 

Recent case law has also shown the court’s willingness to depart from the usual costs position in appropriate circumstances, particularly where litigation conduct or a lack of open negotiation has caused additional expense. A carefully framed Calderbank regime could therefore sit alongside the current emphasis on reasonable negotiation and dispute resolution outside court. 

William Longrigg, Senior Counsel in our Family team, writes in the Law Society Gazette:

Having practised in this sphere for 40 years, I have seen Calderbank offers come and go and have used them as a key strategic tool.  I would advocate for their ultimate comeback in general financial remedy proceedings. Calderbank offers remain relevant and admissible in various financial proceedings in family law, including schedule 1 (Children Act 1989) proceedings, interim maintenance applications, legal services orders applications, set-aside, and enforcement applications. I do therefore question why they do not apply to financial remedy proceedings as a whole.

Read the full article in the Law Society Gazette here.