In addition to Part 36 offers, discussed in our previous article, parties engaged in personal injury litigation should also be aware of Calderbank offers. While less prescriptive than Part 36, Calderbank offers remain an important tactical tool, particularly in cases where the strict requirements of Part 36 may not be appropriate.
What Is a Calderbank Offer and How Does It Differ from Part 36?
The term “Calderbank offer” originates from the case of Calderbank v Calderbank and refers to a settlement offer made “without prejudice save as to costs.” In practical terms, this means that the existence of the offer is not disclosed to the court until after judgment has been handed down, at which point it may be considered when determining liability for costs.
Flexibility, Discretion and the Costs Consequences of Calderbank Offers
Unlike Part 36 offers, Calderbank offers are not governed by a formal procedural code. This provides greater flexibility in how they are structured. For example, they may include terms that fall outside the scope of Part 36, such as offers relating to costs, payment by instalments, or other bespoke arrangements tailored to the circumstances of the case. However, this flexibility also means that Calderbank offers do not carry the automatic costs consequences associated with Part 36.
Instead, the court retains a broad discretion when deciding what weight to give a Calderbank offer. The key consideration is whether the offer was reasonable in all the circumstances. If a party unreasonably refuses a Calderbank offer and subsequently fails to achieve a better outcome at trial, the court may penalise that party in costs. However, unlike Part 36, there is no guarantee of a particular costs outcome, which can make Calderbank offers less predictable in their effect.
When Are Calderbank Offers Used in Personal Injury Claims?
Calderbank offers are often used in situations where Part 36 is not available or is unsuitable – for example, in public places cases involving non-monetary terms or where a party wishes to make a more nuanced proposal.
They may also be deployed as a supplementary strategy alongside Part 36, particularly where a party seeks to exert additional settlement pressure.
As with Part 36 offers, careful consideration must be given before making or responding to a Calderbank offer. In the context of personal injury claims, the same fundamental principle applies: a claimant will generally only have one opportunity to recover compensation. Accepting a settlement – whether by way of a Calderbank or Part 36 offer – will usually bring the claim to a final conclusion.
It is therefore essential that claimants have a clear understanding of their medical prognosis and the long-term implications of their injuries before agreeing to any settlement terms.
From a strategic perspective, Calderbank offers can be effective where used appropriately, particularly in complex or atypical claims. However, given the absence of fixed costs consequences, their success often depends on how the court exercises its discretion after the event.
In conclusion, while Part 36 offers remain the primary mechanism for formal settlement in personal injury litigation, Calderbank offers provide a valuable and flexible alternative. When used in conjunction with a well-considered litigation strategy – and with the benefit of specialist legal advice – they can play a significant role in achieving a commercially sensible and timely resolution.
How Fiona Bruce Solicitors Can Help
Our friendly, experienced team can assess your claim, explain your rights in plain English, and guide you through the claims process and Part 36 offers with care and clarity. We run our personal injury claims on a no win, no fee basis, and a member of the team would be more than happy to discuss any enquiries you have over the phone, free of charge. For more information, contact Rebecca Hall on 01925 263273, or via email to enquiries@fionabruce.co.uk.
The contents of this post do not constitute legal advice and are provided for general information purposes only ■
