Calderbank offers are highly recommended here at Loukas Law in family law cases as they encourage parties to settle disputes amicably, avoiding protracted litigation. These offers can help save time, reduce costs, and minimize stress while providing an opportunity to secure favourable cost orders if the other party unreasonably rejects a reasonable offer. This article explores what they are, their origins and their advantages.
A Calderbank offer is a legal term referring to a “without prejudice” settlement offer while reserving the client’s right to reference the offer in support of a costs application. These offers play a crucial role in family law proceedings, as they can motivate parties to resolve disputes and avoid lengthy and costly litigation.
The term originates from the 1975 English Court of Appeal decision, Calderbank v Calderbank  All ER 333 a family law financial case. In this case, the Wife offered settlement to the Husband, who refused it. After the final hearing, the Husband was awarded less than what the Wife had offered. The court ruled in the Wife’s favour, stating that the Husband had unnecessarily prolonged the proceedings by refusing her offer.
Key Characteristics of a Calderbank Offer:
- Marked “without prejudice, save as to costs”: This allows the offer to be used in court only for a costs application.
- Clear, precise, and certain terms: The offer should be unambiguous and easily comparable to the end result of the litigation.
- Reasonable time frame for acceptance: Typically, a 14-day time frame is considered safe.
- States it is made according to the principles of Calderbank v Calderbank.
- Reserves the right to rely upon the offer in support of a costs application.
- Includes reasons for acceptance: Although not compulsory, providing reasons can make the offer more effective.
Advantages of Making a Calderbank Offer:
- Avoid delay and expense of protracted litigation.
- Set up the client’s case to succeed in a costs order against the other party.
- Comply with compulsory offer requirements in Western Australia’s relevant legislation.
Legal Framework for Calderbank Offers in Western Australia:
- Family Law Act 1975 (Cth): This federal legislation applies to all Australian states and territories, including Western Australia.
- Family Law Rules 2004 (Cth): These rules apply to proceedings in the Family Court of Australia and the Federal Circuit Court of Australia, including in Western Australia.
- Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules).
- Evidence Act 1906 (WA): Section 68A addresses the admissibility of settlement negotiations in Western Australian courts.
Parties in family law proceedings in Western Australia are encouraged to resolve disputes and avoid lengthy legal proceedings by making settlement offers at any time. The Family Law Act 1975 and the Family Law Rules 2004 provide the legislative framework for the family law jurisdiction in Western Australia. The Evidence Act 1906 (WA) also contains provisions related to the admissibility of settlement negotiations in court.
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