Calderbank – ”without prejudice save unto costs”

A Calderbank offer is made by one party putting the other side on notice that if the dispute goes before a court, and the outcome is less favourable to the other the court,  in exercising its discretion as to costs, can order a party who rejected the settlement offer to pay the successful party’s costs up to the time the offer was made, on an ordinary basis; and from the date of the offer to the end of the litigation on an indemnity basis. 

Jacqueline and John Calderbank were married to each other for 17 years. In January 1973 Jacqueline left home and commenced divorce proceedings seeking a declaration that the family home, was her property. John sought a financial provision or alternatively a property adjustment order. 

When her mother died in 1964 Jacqueline inherited about £30,000 and following her father’s death in 1969 another £50,000. As a consequence, Jacqueline purchased the matrimonial home around 1970; although the home was put into John’s name for financial reasons. In June 1970 Jacqueline had purchased a house that was made available for the occupation of John’s mother.

Therefore prior to the marriage breakdown, Jacqueline and John were living in a home financed by Jacqueline; similarly, she was paying their children’s school fees.

The court awarded John £10,000 plus court costs. On appeal, the Court upheld the £10,000 damages but reversed the burden of paying legal costs from Jacqueline onto John; as prior to the matter going to trial, Jacqueline had offered John the house that was rented to his mother as settlement.

The Court held that the legal proceedings had been unnecessarily prolonged by John’s refusal to accept Jacqueline’s settlement offer.

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