Key Takeaways
- A Calderbank offer is a formal settlement proposal made “without prejudice save as to costs” and can strongly influence how the court allocates legal costs at the end of litigation.
- Making a Calderbank offer can protect your legal and financial position by demonstrating to the court that you have acted reasonably in trying to settle the dispute.
- If you do nothing and ignore settlement opportunities like Calderbank offers, you risk facing higher legal costs if the court later decides you acted unreasonably.
- You should consider using a Calderbank offer when you want flexibility in settlement proposals, especially where the rigid requirements of a Part 36 offer are not suitable.
- The primary differences between Calderbank offers and Part 36 offers relate to format, procedural rules, and how the court may treat costs; our solicitors can advise you on the best route for your case.
- Including specific terms in your Calderbank offer, such as a time limit for acceptance (for example, 21 days), can help clarify your intention and improve your position on costs.
- Not all disputes are suitable for Part 36 offers which is why Calderbank offers remain an important tool in commercial litigation and property disputes.
- Poorly drafted Calderbank offers or failure to clearly mark correspondence as “without prejudice save as to costs” can lead to disputes over enforceability so seek advice before sending.
- Our solicitors can draft and review your Calderbank offers to ensure maximum protection and effectiveness throughout your dispute.
If you want to safeguard your financial interests and avoid costly errors, our solicitors at Go Legal can review or draft your Calderbank offer for maximum protection. Book a free consultation or call 0207 459 4037 for clear guidance on your next step.
What Is a Calderbank Offer and When Should You Use It in Litigation?
A Calderbank offer is a formal settlement proposal in litigation, marked “without prejudice save as to costs”. It lets a party try to resolve a dispute without prejudicing their legal position. Although the offer stays confidential during the main proceedings, the court can consider it on costs if the parties do not settle.
You should use a Calderbank offer when settlement flexibility is required, particularly when your case does not fit the rigid rules of a Part 36 offer. This approach helps demonstrate your reasonableness and may protect you from adverse costs if the other party unreasonably refuses to settle.
What Is a Calderbank Offer in English Litigation?
A Calderbank offer is a written proposal to settle a dispute, explicitly marked “without prejudice save as to costs”. This label means the offer cannot be shown to the court while the case is ongoing, but becomes relevant after judgement when the court decides who should pay legal costs.
The main purpose of a Calderbank offer is to encourage the opposing party to settle on fair terms and to protect the offering party on costs if the dispute proceeds.
You may also find our article on Part 36 Offer Advice: UK Costs, Risks & Strategy Settlement Guide helpful if you want to understand the alternate formal offer process.
How Does a Calderbank Offer Work in Practice?
When you make a Calderbank offer, the terms are shielded from the judge until after the substantive decision is made. Only then will the Calderbank offer be revealed, so the court can decide if your behaviour on settlement was reasonable.
This preserves the integrity of the main litigation and motivates parties to act sensibly when opportunities for settlement arise. If a party refuses a reasonable offer and later does worse at trial, the costs consequences can be severe.
- The Calderbank offer is disclosed only at the costs stage.
- The court examines offers to assess whether a party acted reasonably.
- A rejected, reasonable offer can persuade the judge to penalise the party who refused it.
When Should I Use a Calderbank Offer Instead of a Part 36 Offer?
Use a Calderbank offer when the settlement you want to propose contains terms that are too complex or tailored for the strict rules of a Part 36 offer. This might include non-financial clauses, variable deadlines, or commercial terms not addressed by standard procedures.
Common scenarios where Calderbank offers are preferred:
- The settlement includes non-cash terms, like transfer of assets, business arrangements, or confidentiality clauses.
- You wish to suggest a “drop-hands” outcome where both parties walk away and cover their own costs.
- You want to set an unusual deadline, propose staged payments, or add conditions beyond the scope of Part 36.
If you are considering your options, our guide on Calderbank Offer: The Ultimate Guide to Winning Litigation explains these differences in detail.
Calderbank Offer vs Part 36 Offer: What’s the Difference?
The core differences are:
- Format and Procedure: Part 36 offers must comply with the Civil Procedure Rules in both format and content, while Calderbank offers can be tailored to your situation as long as their basis is clear.
- Costs Consequences: Part 36 offers carry automatic costs consequences if beaten at trial. With Calderbank offers, it is up to the court to decide based on what is fair.
- Flexibility: Calderbank offers allow for terms that are not limited to the payment of money, giving you more scope to settle on your terms.
What Are the Costs Consequences of Rejecting a Calderbank Offer?
If you reject a reasonable Calderbank offer and do not do better at trial, you risk paying additional costs from the point the offer was made. The judge can consider your refusal as unreasonable, potentially ordering you to pay some or all of the other side’s legal costs from that date forward.
While there is no guarantee of cost recovery, the court routinely uses Calderbank offers to assess fair conduct and encourage responsible settlement behaviour.
If you want your position on costs to be as strong as possible, use a Calderbank offer proactively and speak to one of our lawyers at Go Legal for guidance.
How Do I Draft a Calderbank Offer That Protects My Legal Position?
Checklist for Preparing an Effective Calderbank Offer
- Mark the letter “without prejudice save as to costs”.
- Clearly lay out all settlement terms, including monetary and non-monetary aspects.
- Explain the process for accepting the offer.
- Set a definite, reasonable deadline for acceptance.
- Present a real compromise, not just your ideal outcome.
You can also include confidentiality clauses, staged payments, or other terms suitable to your situation.
A vague or carelessly drafted offer risks being ignored by the judge when costs are assessed.
Practical Examples: Calderbank Offers in Commercial Disputes
Step-by-Step Worked Scenario
A construction company is owed £55,000 by a client. The company sends a letter offering to settle for £50,000, marked “without prejudice save as to costs”. It gives the client 14 days to accept, stating that each party will cover its own legal costs up to the settlement date. The client refuses, and the company later wins at trial. At the costs stage, the court uses the offer to decide that the client must pay the company’s legal costs from the date the Calderbank offer was made.
Tips for best practice:
- Keep clear records of all settlement correspondence and terms.
- Use traceable communication methods for sending offers.
- Set diary reminders for your acceptance deadline and follow up as needed.
The Civil Procedure Rules set out the requirements for Part 36 offers but do not prescribe the form or timing of Calderbank offers.
- Each party can set their own deadline for acceptance.
- The reasonableness of any deadline will be judged individually, taking all factors into account.
- The court considers the conduct of the parties, including genuine settlement efforts, when making a costs order.
What Do the Courts Say About Calderbank Offers and Costs?
Courts in England and Wales routinely treat Calderbank offers as a vital part of settlement negotiations. Judges assess whether the offer was realistic, whether the refusal was justified, and whether costs sanctions are appropriate, but retain full discretion over the outcome.
Courts do not apply a fixed rule, but consistent case law and standard practice confirm that a party acting reasonably in making or accepting a Calderbank offer can significantly influence the final costs decision.
What Are the Risks and Pitfalls of Using a Calderbank Offer?
Risks include:
- Failure to label or draft the offer clearly, which might make it unenforceable as a Calderbank offer.
- Omitting key terms, leading to ambiguity and later disagreement.
- Making a half-hearted or insincere offer that does not genuinely attempt to settle the matter.
Our litigation solicitors are ready to review your draft offer or propose a bespoke Calderbank offer for your dispute.
Can Calderbank Offers Be Used in All Types of Litigation?
Calderbank offers are available across most commercial, property, partnership, and debt litigation in England and Wales. They can also play a role in family and financial remedy proceedings, appeals, interim applications, and enforcement actions. Some specialist dispute areas or tribunals may have their own rules or practices restricting how settlement offers should be made.
Our Winning Approach to Calderbank Offers and Strategic Settlement in Litigation
Our team at Go Legal provides strategic, practical advice to ensure every Calderbank offer you make supports your commercial objectives and protects you on costs. We assist with:
- Assessing whether a Calderbank, Part 36, or open offer best suits your needs.
- Drafting clear, enforceable offers tailored to your commercial priorities.
- Supporting negotiations to maximise your settlement options.
- Managing documentation so your conduct always demonstrates reasonableness.
- Analysing likely costs outcomes before you commit to trial.
We keep you informed at every stage and give you practical, tailored recommendations so you remain in control of your dispute.
If you are considering a settlement proposal or need help responding to one, contact our litigation specialists for guidance.
Frequently Asked Questions
Does a Calderbank offer always protect me on costs if I make one?
No. While a well-drafted, reasonable Calderbank offer can help, the court ultimately decides how costs are allocated depending on the specific facts.
What should my letter say to be treated as a valid Calderbank offer?
It should include “without prejudice save as to costs”, clearly set out settlement terms, give an explicit acceptance window, and show a genuine willingness to compromise.
Can I make both a Part 36 offer and a Calderbank offer at the same time?
Yes. In some situations, making both types of offer is possible and strategic, so long as you understand the procedural consequences.
What if the other party ignores or does not respond to my Calderbank offer?
The absence of a reply does not invalidate your protection. The court may still consider your offer and the parties’ conduct when making a costs order.
How do courts decide if my offer was “reasonable” on costs?
The judge will evaluate your offer’s clarity, terms, and spirit of compromise, alongside the context of the dispute.
Can I make a Calderbank offer at any time before trial?
Generally, yes. You can make a Calderbank offer at any stage before or during litigation, but always specify a fair and clear deadline for acceptance.
Are Calderbank offers suitable for small claims or fast-track cases?
They can be used, but the costs at stake, the court’s discretion and the procedural context may mean their impact is limited.
Do I have to use a solicitor to send a Calderbank offer?
No, but having your offer drafted or reviewed by a solicitor increases the likelihood that it will carry weight and protect you on costs.
What happens if I accept a Calderbank offer after the deadline?
The other party can refuse acceptance after the deadline, but further negotiations may occur if settlement is still possible.
Are Calderbank offers used differently in family law disputes?
Yes. In family financial proceedings, open offers are now more usual, but Calderbank offers still apply in certain situations where extra flexibility is needed.
Get Strategic Advice on Calderbank Offers Today
Understanding how and when to use a Calderbank offer is vital to protecting your costs and strengthening your negotiating position in commercial disputes. If you want to make or respond to a Calderbank offer, our litigation team at Go Legal provides tailored support for business owners, professionals, and directors across England and Wales.
