Come back, Mr and Mrs Calderbank, all is forgiven

The recent correspondence about 'Calderbank offers' prompted me to give vent to one of the many bees in my bonnet. I viewed the abolition of such offers in 2006 with mixed feelings.

For the benefit of my readers who may not be lawyers, before 2006 it was fairly standard for parties to ancillary relief proceedings to make what became known as Calderbank offers, after the case where the practice was given judicial approval. This was a ' without prejudice ' offer to settle on certain terms ( and being without prejudice, it could not be referred to at the hearing ) and if the offer did not lead to a settlement before the hearing ( as no doubt in many cases it did ) and the case was fought out in Court, the offers would then be dredged up after the ruling like a rabbit out of a hat. The party who made the offer which got closest to the judge's ruling would normally be awarded costs.

There were a number of things wrong with the practice, but perhaps the most serious criticism was that it wasn't all that different from the kind of thing you get in Garden Fetes when you have to guess the number of Smarties in a jar and the contestant who gets closest to the correct figure wins the prize. A different judge might have come to a different conclusion ( and not necessarily unreasonably ) and the result might well have been that a different party might have ended up paying the costs, on exactly the same set of facts.

So Mr and Mrs Calderbank were finally laid to rest and not very many people came to the funeral.

My criticism was that Courts were asking the wrong question. Instead of worrying about who got closer to the verdict ( which was basically guesswork ) what they should have been asking is, whether the offers made were reasonable. The purpose of an award of costs should be to penalise unreasonable behaviour, and there should be no award where the Court is basically being called upon to adjudicate between two reasonable offers.

During my 14 months or so on wikivorce I come across people who are just plain unreasonable, or the spouses ( soon to be ex spouses ! ) of partners who were being bloody-minded, intransigent and adopting negotiating stances which were plain absurd. Unreasonable behaviour is not the exclusive prerogative of either sex, but the fact is that spouses sometimes use ancillary relief, or the denial of it, as a means of getting their own back.
The impression I get - not being a practicioner in this field - is that Courts seem reluctant to make costs orders even in these rather blatant cases ; we seem to have gone from one extreme to the other.

Notwithstanding the title of this post, I think we can let the Calderbanks rest in peace ; but I think it's time the Courts took a rather more robust line against litigants who are being plain unreasonable. End of rant.

Mike,

I could not agree more and am happy to rant along with you.

Currently facing legal bills of 25k + and having made numerous reasonable offers that would give stbx a property and a good pension income while I worry about the kids, the mortgage, the future et al, I am feeling very aggrieved that there is no way of getting recompense for the money I have had to pay out in what was to be - according to his sol's first letter an 'amicable' case!

The only hope is that stbx's lot are found to have been guilty of litigation misconduct.

There is such a thing as 'vexatious litigation' in other areas of the law. That is what I would call this.

Hadenoughnow

I totally agree, 18 months ago, I offered my stbx a settlement to be drawn up in a deed of separation. He declined. 18 months down the line, numerous letters, voluntary disclosure using form E and we are tantalisingly close to settlement on exactly those terms offered 18 months ago. The only difference is that we have both incurred substantial costs.

I would like him to pay my costs given that the whole process has been totally unnecessary but I am advised that given we are to draw up a Consent Order there would be no order as to costs.His inability to assess a fair deal at the outset (if I am generous) or his vexatious attempt to procure an unfair deal (if I am less generous) has cost me (and him) dearly. Money which could have been spent on our children!

If I could have made a Calderbank offer at the start it may well have given him focus. The threat of cost penalties does tend to do this. I do however accept that one size cannot fit all.

Hear Hear Mike,

While I agree that the thinking behind the retirement of the Calderbanks was sound, what it has left us at the coalface with is yet another scenario in which those of us who attempt to run our cases in a reasonable, sensible way simply yet again feel impotent against those that refuse to behave sensibly and reasonably.

Getting a costs order now is nigh on impossible regardless of how much the intransigence of one side has pushed the litigation to the point of no return which surely cannot have been the intention of waving the Calderbanks off to retirement.

There has to be a middle ground, but sadly, and yet again in family law, we have failed to find it.

I'll climb down from the soapbox with you Mike...but I am sure it will not be long before we are back up there

Amanda