Offer To Settle
Offer To Settle
Offer To Settle
1. It allows both parties to save on legal cost (other than the cost of
instituting a claim in court), provided that the parties are willing to
accept the terms of the offer;
2. It allows both parties to agree to a sum which both parties are willing to
part with/receive instead of leaving the calculation of damages to the
court; and
3. The offending party does not have to admit to any liability.
The principle governing an offer to settle is laid down in Order 22B of
the Rules of Court . Such an offer:
1. Can be made and withdrawn at any time before the court decides on
the outcome of the matter between the parties in court; and
2. If such an offer to settle specifies the time in which one party needs to
accept the offer, such an offer is deemed to be withdrawn when the
time expires.
An offer to settle can be made to multiple parties jointly or individually
if they are more than one party in proceedings.
How to make/ accept/
withdraw an offer to settle?
Process Form Remarks
Form 1. The terms of the offer must be set out in numbered paragraphs.
Making an offer
34
2. Set out the time in which the other party is to accept the offer.
Withdrawing an Form 1. It can be withdrawn at any time, even if there is a clause specifying the
offer 35 offer at a certain date .
- the court must not know of such an offer even if it is not accepted
until all questions of liability and relief other than cost have been
determined by the court as this allows the court to make an impartial
and independent assessment of the damages and claims of the matter
without the influence of knowledge of the offer to settle, or at the very
least, is seen to be making an impartial and independent assessment of
the damages and claims.
CALDERBANK V CALDERBANK was an important English Court of
Appeal decision establishing the concept of a "Calderbank Offer". A
“Calderbank Offer” can often be identified by the disclaimer "without
prejudice, save as to costs".
After a marriage of 17 years, Mr and Mrs Calderbank separated and
filed for divorce, which was duly granted.
However substantial difficulties arose regarding the division of the
matrimonial assets of £78,000, consisting of the £80,000 Mrs
Calderbank had previously inherited during the relationship from the
estates from the death of both her parents. Complicating matters
further, the matrimonial home was registered under only Mr
Calderbank’s name (for fiscal reasons), and he continued to live in
this property after the divorce.
The matter was referred to the Family Court, and the judge awarded
Mr Calderbank the modest amount of £10,000 (out of the total assets
of £78,000), as well as court costs.
However prior to the matter going to trial, Mrs Calderbank had made
the following offer via no less than the form of an affidavit, "I am
willing, and have always been willing, to make over to the [husband]
the house at Alderley Edge", which Mr Calderbank declined.
While this house was not the matrimonial home (it was rented by Mr
Calderbank’s father, and Mr Calderbank's mother lived there), the
trial judge was of the opinion that this house was worth about
£12,000, which was £2,000 more than Mr Calderbank later obtained
at trial.
Mrs Calderbank, not happy with the outcome, appealed on two
grounds, that the courts had no legal jurisdiction to make such a
property division and, of most legal significance, that as Mr
Calderbank had obviously declined a reasonable pre trial settlement
offer, he should not be entitled to legal costs for unnecessarily
prolonging the legal proceedings.