Introduction Content and purpose of offers

1. Both offers of compromise1 and ‘Calderbank’ offers are offers made by an offeror which, if not accepted, or rejected, carry certain cost consequences for the offeree if the offeree does not better the offer at trial.

2. An offer of compromise has specified minimum requirements and is governed by the various rules of courts and tribunals, whereas a ‘Calderbank’ offer has no prescriptions and is governed by flexible rules arising from caselaw. There are important differences between each that inform when either might be useful in any particular matter.

3. Such offers are ordinarily made on a ‘without prejudice save as to costs’ basis. This means that they are confidential, and cannot be produced in court against a party except on the question of costs. For certain strategic reasons a party may choose to serve an offer on an ‘open’ basis, which means it can be used in evidence.

2020-07-22 offers paper combined Download