Calderbank v Calderbank: CA 5 Jun 1975

Letter Without Prejudice Save as to Costs

Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He refused the offer as inadequate. Mrs. Justice Heilbron granted a declaration for the wife and ordered pounds 10,000 for the husband out of the proceeds of sale of the matrimonial home. He had got rather less than he had been offered. They then disputed costs on appeal.
Lord Justice Cairns said: ‘Before Heilbron J the wife’s application for costs was based upon a letter which had been written by the wife’s solicitors to the husband’s solicitors offering something substantially more than pounds 10,000. Heilbron J, despite that letter being drawn to her attention, made no order as to costs. Immediately after the hearing before her it was discovered that that was a ‘without prejudice’ letter and very properly at the opening of this part of the appeal Mr. Hordern asked for the court’s guidance as to whether in those circumstances he was entitled to rely upon that letter. We formed the opinion that he was not. The letter was written without prejudice. The ‘without prejudice’ bar had not been withdrawn and therefore we took the view that it was a letter which could not be relied upon either before the judge at first instance or before this court. Mr. Hordern then indicated the difficulty that a party might be in proceedings of this kind when he or she was willing to accede to some extent to an application that was made and desired to obtain the advantages that could be obtained in an ordinary action for debt or damages by a payment into court, that not being a course which would be appropriate in proceedings of this kind.’

Cairns LJ suggested a formula for future cases to ensure that negotiations could be conducted without prejudice to the issue at the trial, but yet nevertheless be referred to after judgment when the question of costs came to be considered. He said: ‘There are various other types of proceedings well known to the court where protection has been able to be afforded to a party who wants to make a compromise of that kind and where payment in is not an appropriate method. One is in proceedings before the Lands Tribunal where the amount of compensation is in issue and where the method that is adopted is that of a sealed offer which is not made without prejudice but which remains concealed from the tribunal until the decision on the substantive issue has been made and the offer is then opened when the discussion as to costs takes place. Another example is in the Admiralty Division where there is commonly a dispute between the owners of two vessels that have been in collision as to the apportionment of blame between them. It is common practice for an offer to be made by one party to another of a certain apportionment. If that is not accepted no reference is made to that offer in the course of the hearing until it comes to costs, and then if the court’s apportionment is as favourable to the party who made the offer as what, was offered, or more favourable to him, then costs will be awarded on the same basis as if there had been a payment in.
I see no reason why some similar practice should not be adopted in relation to such matrimonial proceedings in relation to finances as we have been concerned with.
Mr. Millar drew our attention to a provision in the Matrimonial Causes Rules 1968 with reference to damages which were then payable by a co-respondent, provision to the effect that an offer might be made in the form that it was without prejudice to the issue as to damages but reserving the right of the co-respondent to refer to it on the issue of costs. It appears to me that it would be equally appropriate that it should be permissible to make an offer of that kind in such proceedings as we have been dealing with and I think that that would be an appropriate way in which a party who was willing to make a compromise could put it forward. I do not consider that any amendment of the Rules of the Supreme Court is necessary to enable this to be done.’

Cairns LJ, Scarman LJ, Sir Gordon Wilmer
[1976] Fam 93, [1975] 3 All ER 333
England and Wales
Cited by:
ApprovedMcDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
CitedGojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
CitedNorris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
CitedButcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
CitedReed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
CitedCrouch v King’s Healthcare NHS Trust CA 15-Oct-2004
The defendants sought approval of their practice of making a written offer to the claimants rather than making a payment into court. The offer had been accepted but only after the defendant had purported to withdraw it.
Held: ‘it certainly is . .
AppliedPotter v Potter FD 1982
The court considered the admissibility of without prejudice correspondence on costs decisions. . .

Lists of cited by and citing cases may be incomplete.

Family, Costs

Leading Case

Updated: 09 November 2021; Ref: scu.186056