Calderbank offers, a key strategic tool used commonly in pre-2006 proceedings, were an important part of the litigation armoury. An appropriately put offer – which was reasonable, met parties’ needs and was fair – if rejected by the other party, could result in a costs order against them.
This was therefore a real incentive to settle and, before the non-court dispute resolution (NCDR) provisions became an entrenched part of the family law framework, the impact was to ensure that reasonable offers to settle were not rejected and negotiation was proactive. The potential for costs orders against the ‘unreasonable’ party did indeed provide that incentive.
With the Family Procedure Rules (FPR) changes in financial remedy proceedings in 2006 and the consequent ‘no order as to costs’ rules (albeit with some exceptions for admissibility of Calderbank offers), parties could become more entrenched in their positions. We saw an era of litigants running positions to final hearings that they otherwise may have thought about more carefully if a reasonable offer had been on the table and ultimately available for the judge to see.
That said, the direction of travel is now clear: we work in an environment increasingly dominated by NCDR. This is in part caused by the significant delays with court hearing dates. Parties with available resources can pay privately to bring their case to a private judge or arbitrator or attempt to resolve matters in mediation. This is amplified by the general family law climate. The government consultation on proposed changes to the law on cohabitation, in addition to potentially significant changes to financial remedies on divorce, has been launched. Reform is very much on the horizon.
The court clearly needs, and indeed wants, a framework to encourage parties to negotiate out of court and to try to resolve matters directly. While there is an obligation on parties to put their open offers before the court (and in good time before hearings), Calderbank offers are an excellent mechanism for this.
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 for these reasons.
Legal framework
A Calderbank offer is a settlement offer made on a ‘without prejudice save as to costs’ basis – meaning it cannot be referred to in proceedings or brought to the court’s attention – other than on the subject of costs (if the offer is not accepted). These offers could be made at any stage of the proceedings. In practice, this meant that both parties are compelled to consider settlement at all stages or potentially be penalised in costs. This sits with the general thrust of the FPR and the NCDR framework implemented in 2024.
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.
When the court is determining whether it is fair to order costs following a Calderbank offer, it will take the following into account:
- The particular provisions of the Calderbank offer: did the party rejecting this do so unreasonably and how does this compare to the ultimate resolution?
- Timing. When was the offer made? The closer to the final hearing, the less weight it may have, particularly if substantial costs have already been incurred in preparation.
- Has full disclosure been provided? Is there any information missing or awaited that prevents the offer being accepted?
In addition, the court will also consider any conduct issues (this can include general litigation conduct – for example, willingness to negotiate/position on disclosure), but also wider conduct considerations including abuse allegations.
More recently, case law developments have seen the court depart from the no order as to costs rule in appropriate situations. An example is BM v MB & Ors (Financial Provision: Identification of Marital Assets/Avoidance of Disposition Order) [2025] EWFC 129, where the court said the wife ‘caused extra expense in relation to the main expert by seeking to explore the minutiae of the conduct of the business. Her open offer was completely unrealistic in the light of non-marital resources’. She was ordered to pay 25% of the husband’s costs to reflect ‘the lack of open negotiation’.
In the post-White era in the early 2000s, where there was a shift in the approach of the court and the sharing principle was introduced, Calderbank offers were seen as a more aggressive litigation weapon – asking the court to penalise and punish another party – and apparently this was part of the rationale for the change to procedure. The costs rules were always a safety net for cases with extreme litigation conduct – but Calderbank offers were deemed unnecessarily litigious.
Another reason for the change was a genuine wish to reduce the two streams of correspondence with the negotiations going on in the background on a without prejudice basis. There was a perception that without prejudice would be replaced by open correspondence, but clearly this has not happened.
At a time when significant reform is on the horizon, the FPR has evolved and introduced NCDR provisions to reflect the principles Calderbank offers encouraged (open and reasonable negotiation at all stages of proceedings), as well as their inclusion in certain financial proceedings in family law – they should be reintroduced. This can only be seen as a positive and would encourage settlement, ultimately saving on costs. Perhaps Calderbank offers will make their comeback in the years to come.
William Longrigg is head of Charles Russell Speechlys’ family group
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