Open Offer or Without Prejudice

I disagree Rugby. Open offers are the best method of coming to a conclusion as long as you are aware of the implications of an open offer and as long as you put a closing date on the offer - or that you make another open offer and state that it replaces all other open offers to settle.

Without prejudice (which was the old Calderbanks in family) have long gone.

In CPR you can make part 36 offers which are basically the same as the old calderbanks (charles will correct me no doubt if I am wrong).

Personally, especially as my interest is primarily in family, I always have wanted open offers, made many and as times went by made sure that they had closing dates - always open either up to a hearing or just to the night before as I am not interested in general in without prejudice save for costs - you are either guenuine in family (bearing in mind that usually both parties bear their own costs FPR ) or you are not.

Sadly there are solicitors that are not aware that Calderbank Offers "With-out Prejudice, Save as for Costs", were abolished in 2006, they might make a comeback but, have not done so yet.

History;

These offer letters, marked “without prejudice save as to costs”, were called Calderbank letters after the first reported case in which they were approved. Being ‘without prejudice’, neither side could refer to the offers made during the trial itself, but once the court’s decision was made and costs were the only remaining issue, the contents could be revealed to the court.

Solicitors tend to feel that Calderbanks were useful in litigation as they could inject a realism into financial proceedings and give a spouse pause for thought about whether they really would do better than a good and sensible offer. Solicitors know that a carefully constructed offer could change the dynamics of the negotiations and put proper pressure on someone to settle the case at an early stage, as rejecting an offer could lead to paying the other person’s legal costs as well as their own. Fully contested litigation can be truly damaging to the wider family, in emotional as well as in financial terms, and rarely helps parents co-operate about children.

Judges, however, tended to despair that the orders they carefully crafted to ensure each person’s and the children’s needs would be met after divorce could be thrown into chaos by an unexpected liability for costs arising from a Calderbank letter. It was this factor that ultimately led to the demise of Calderbanks and the introduction of the starting point that there should be no order for costs in financial proceedings.

The problem that family lawyers have noted since Calderbanks were abolished is that there is little incentive for some people involved in financial litigation to accept a decent offer from their spouse or civil partner, except to minimise their own costs. Anecdotally more cases are going to trial as there is now little risk of the court making punitive costs orders. With the government now desperate to reduce pressure on the family justice system and encourage people to settle their differences at the end of a relationship without recourse to the court, it appears the ‘no order for costs’ rule may not be considered to be serving the required purpose.

It was no great surprise to us to hear that the reintroduction of Calderbanks is being discussed in certain high-level family justice committees. We at CFLP would like to see them reintroduced as they can be very helpful in promoting settlement in family finance disputes and ensuring that each person is realistic about what might be achieved at trial. As long as each person in the dispute has a sensible legal advisor on board, Calderbanks can do a great deal of good in the process, particularly for future co-parenting arrangements. However, with the increase of litigants in person and the proposed removal of legal aid from family cases, the potential for exploiting a difference in financial and bargaining power may be significant. We would urge judges to use discretion when they consider the final impact of offers on the question of costs, but look forward to new era in court practice on family finance if Calderbanks do come back, in the hope more families will be able to settle their cases without requiring extensive court intervention.

NWTT.

Now neat, answer without an answer! I am going to disagree with you on some minor points as I believe that Calderbanks was a horrible gamble at the clients and courts expense.

However, have to admit at speed reading your response, (seadog you and thanks for everything you have helped me with).

I am going to have to look up various things in your post. What ever happens to me and where ever I go I am not going to surcumb to the gamble and risk of either Calderbanks (ancient history) or part 36 (which should be consigned to the same bin in my view).

You either have a good case and good cause based on sound argument or you do not, putting a judge in the situation of having to make an uneducated and biased gamble is not on in my view and only leads to the general public feeling that they have been done over not only by one or two legal teams but also by Crown Servents (by which I mean the Judge).

I have always believed in taking educated risks - I hope not to be dissapointed. Dark horse you are:)

Do you know what I think I am just 20 minutes drive from you! Fancy that, might just pm you - you might like to get involved in my family "emotions".

"keep the piece"? Parkers law.

BSc business studies with law component

20 mins from me? gosh, hope so, that would be fun x

I am struggling now to contain my excitement, as you as a professional could be the answer to my dreams and not only that I do believe in the right professional help.

Am not sure what else to say other than I have gained much from your great advice on so many emotional and moral subjects which I believe goes to the heart of the matter as to why I have been asked so many times to make submissions and produce documents to court.

I am a housewife, with three dependent children, one disabled as you know, one who is a minor just starting out in life and one who is still just a junior.

I believe I am ADD, I my eldest has DS, my youngest I believe has ADHD, my brother in late life has been diagnosed with ADHD of the highest level and so have both of his children. I think my mother is on the autistic spectrum so your professional opinion on those things is appreciated.

I have never been involved in any Police dispute started by myself but I do have all the social services reports about DV, I was also referred to Freedom programme by the Police and assessed as very high risk.

I am still in court and would appreciate an independent and professional view.

I hope that interests you as my aim is to progress the law, to inspire the faith the general public has in law, to support the UK Judiciary, trustees and the legal profession.

I think that you might be best placed to give me some initial advice on how to get advice for my eldest son bearing in mind his considerable difficulties in overcoming abuse.

I think I can also get affidavits from his college regarding his inabiltiy to tolerate even the slightest raised voice, how the disabled social services team have supported him and my concerns for my youngest son.

I am too excitted right now to say any more, I have probably said too much already.