Calderbank Letter Template

AITKEN WHYTE LAWYERS BRISBANE – LITIGATION AND DISPUTE RESOLUTION LAWYERS AND SOLICITORS FOR BRISBANE, QUEENSLAND

• Calderbank Letter Template Uk
• Calderbank Letter Template Australia
• Calderbank Offer Letter Template
• Calderbank Letter Template Nz
• Calderbank Letter Template Word

You can also use a Calderbank Offer before or during litigation. However, you must use it prior to the delivery of judgement. Lucy is in a legal dispute with Jeff over a contract breach. Jeff offers Lucy $60,000 to resolve the dispute. Jeff’s lawyer sends this as a letter to Lucy’s lawyer and writes that it’s to act as a. Details for calderbank letter; Property: Value: Name: calderbank letter: Description: Filename: calderbankletter.docx: Filesize: 14.17 kB: Created On: 17.

Calderbank Offers

• An example of a defendant's Calderbank letter setting out an offer to settle (also known as a non-Part 36 offer to settle or a Part 44 without prejudice save as to costs offer), with integrated drafting notes.
• A sample Calderbank offer is attached to this Guidance Note as Appendix 1. STRATEGY IN MAKING THE CALDERBANK OFFER. When To Make The Offer? A party looking to settle a claim should make a Calderbank offer as early as possible so that it can obtain maximum costs protection in the arbitration. How Much To Offer?

Costs Protection in Litigation

There is no doubt that litigation is expensive. Each party to a dispute can spend many thousands of dollars in an attempt to advance or defend their case. The costs consequences for the losing party can be significant. Costs orders by a court usually follow the event, meaning that that the successful party to litigation will receive a costs order in their favour so that the losing party has to pay the successful party’s legal costs (and their own). What a court orders generally as costs are called “ordinary” costs or “party and party” costs. In some rare instances a court may also order “indemnity” or “solicitor and client” costs. The differences between these are quite dramatic and a successful party who receives the benefit of a costs order may only expect to recover ½ to 2/3rds of what they actually pay their lawyer.

For this reason, there are steps that can be taken in an attempt to protect all the reasonable costs a person may pay their lawyers to receive an ‘indemnity’ costs orders through making offers to settle. They can either be formal offers to settle under the Uniform Civil Procedure Rules or what are known as “Calderbank” offers. This explores in a little detail what these are and the differences between them.

Uniform Civil Procedure Rules

The rules of the court have been designed to encourage parties to make and accept reasonable offers to settle out of court. Accordingly, a party who fails to make or accept a reasonable out of court settlement can incur considerable legal cost penalties.

Offer made by Plaintiff:

If a Plaintiff makes an offer that is not accepted by the Defendant but then ultimately obtains a judgment better than the offer, then the Defendant will be required to pay the judgment of the court plus the Plaintiff’s legal costs, which will include all costs reasonably incurred and of a reasonable amount (known as ‘indemnity’ costs).

An example is if a Plaintiff notifies the Defendant that they are willing to accept an out of court settlement of $10,000. The Defendant, however, rejects the offer and the matter proceeds to trial. If the Plaintiff subsequently wins the case and is awarded $11,000, the Defendant will be required to pay not only the judgment but all the Plaintiff’s reasonable legal costs as well from the date that the Plaintiff made the Offer to Settle. This is because the Defendant is effectively being punished for not accepting the Plaintiff’s reasonable Offer to Settle out of court.

Offer made by Defendant:

Ordinarily, if at trial a Defendant is ordered to pay money to the Plaintiff, the Defendant will also be ordered to pay the legal fees incurred by Plaintiff in taking the matter to trial. The philosophy behind this is that the Plaintiff incurred costs in taking the matter to trial and, if the Defendant had rather paid initially the money that the Plaintiff was at court found to be owed, the Plaintiff would not have incur the legal fees associated with taking the matter to trial. Therefore if the Defendant is found at court to owe money to the Plaintiff, the Defendant will normally be ordered to pay – in addition to the money found to be owing – the Plaintiff’s legal fees.

However, if the Defendant makes an offer that is not accepted by the Plaintiff but then the Plaintiff ultimately obtains a judgement that is not better than the offer, then the Defendant must pay the Plaintiff’s costs up to and including the day of service of the Offer to Settle, but the Plaintiff must then pay the Defendant’s costs from after the day of service of the Offer to Settle.

An example of this is if the Defendant makes an offer of $10,000 to settle the matter but the Plaintiff rejects this offer. The matter proceeds to trial and the Plaintiff wins the case but is awarded $10,000 or less. The Defendant will have to pay the Plaintiff’s costs up to the date that the Defendant made the offer, whereas the Plaintiff will have to pay the Defendant’s reasonable costs from the date the Plaintiff received the Offer to Settle.

The effect of this cost consequence for an offer to settle delivered by a Defendant (“Offered Amount”) is that, if the Plaintiff rejects the offer and (later) at trial the Plaintiff is awarded a sum of money (“Trial Amount”) that is less than the Offered Amount:

• the Defendant will be ordered to pay the Trial Amount, and will also be ordered to pay the legal fees incurred by the Plaintiff until the time of the Offered Amount;
• BUT also
• the Plaintiff will be ordered to pay the legal fee’s of the Defendant incurred from the time of the Offered Amount to the awarding of the Trial Amount. In short, even though the Plaintiff won, it is still ordered to pay the legal fees incurred by the Defendant from the time of the Defendant’s Offered Amount.

Calderbank Offers

A “Calderbank” offer is named after the decision in Calderbank v Calderbank [1975] 2 All ER 333. A Calderbank offer is essentially a written offer made on a without prejudice basis. It is made expressly reserving the right to bring the offer to the notice of the Court on the question of costs if the result for the party served with the offer is not more favourable than what has been offered.

A Calderbank offer is an “all-in” offer made inclusive of any claim for legal costs. It is a precise amount that is offered in full and final settlement of the claim. There is no need to guess what amount of legal costs will be assessed over and above the amount of a formal offer of compromise. If a more favourable result is achieved, the offer can be tendered to the court in support of a request for indemnity costs from the time the offer was made.

The court will consider a number of factors such as whether the offer was reasonable and a genuine attempt to settle the litigation, if the offer was clear in its terms, and if it was left open for a reasonable period of time for acceptance, such as, a period of say 14 to 28 days.

Summary

The use of either Calderbank offers or offers under the UCPR are useful tools that should be considered in all litigation in an attempt to bring the litigation to an end, due to the ‘stick’ that can be used by the court in an award of an indemnity costs order if not accepted.

Office Location and Contact Details

Calderbank Letter Template Uk

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

How do you stop legal costs from mounting in litigation? What weapons are available to a reasonable Defendant who wishes to shut down litigation at an early stage? How does a Defendant transfer the risk of legal costs to a Plaintiff?

Lodgements, tenders and Calderbank offers are methods by which a Defendant can make an offer to settle a Plaintiff’s claim. If the offer is not accepted and a Court subsequently awards less than the sum offered, all of the legal costs from the date of the offer are generally awarded to the Defendant.

Whereas lodgements and tenders can only be made at certain times after the issue of proceedings, a Calderbank offer can be made both before the litigation commences and during the course of a Hearing. As such, it can be a very useful tool for both insured and uninsured Defendants.

Calderbank Letter Template Australia

What is a Calderbank offer?

A Calderbank offer is a letter written by one party, generally the Defendant, to the Plaintiff, making an offer to resolve the litigation. It should be marked “without prejudice save as to costs”, or else it may be shown to the Court at the outset, which could influence the Court’s views on both liability and quantum. Any Calderbank offer should be unequivocal in its terms; in other words, it should deal with the issue of how the costs of the proceedings to date are to be treated, it should have a date by which the offer has to be accepted, and it should make clear the consequences of not accepting the offer.

Initially, Calderbank offers were used only in matrimonial proceedings and take their name from a 1975 case of Calderbank V Calderbank, but they are now more common in general litigation. They are becoming more commonly used because the Courts have demonstrated a willingness to impose costs penalties on Plaintiffs who do not accept reasonable offers or refuse outright to engage in negotiations. These subtle shifts in judicial conduct have been noted not only by Defendant’s legal advisors, but also by those advising Plaintiffs. The more frequently that costs penalties are imposed against the Plaintiff, the more often Calderbank offers will be taken seriously. An offer which puts the Plaintiff on risk of the proceedings, even if it represents 90 per cent of the Plaintiff’s legal advisors’ view of the value of the claim is likely to provoke a resolution or alternatively an indication from the Plaintiff’s solicitors that a small increase in the offer will resolve the claim. Over time, if an insurer or solicitor develops a reputation as someone who will not move off the Calderbank offer, so much the better, because the Plaintiff’s legal advisors will know not to expect a better offer at the Hearing.

Origin of the Calderbank Letter

While the first judicial recognition of Calderbank offers was in 1992 in the case of O’Neill V Ryanair, they were not recognised in the procedural rules until 2008 with the passing of Statutory Instrument 12 of 2008. The instrument amends Order 99 in relation to the Courts’ consideration of costs and allows the Court to “have regard” to any offer in writing “to satisfy the whole or part” of the other party’s claim. That is important because it allows Defendants to carve out elements of the Plaintiff’s claim that may involve significant costs and Court time and leave perhaps only items which may, for example, fail for want of causation.

Recent Cases

These days, Courts are less inclined to award costs in respect of Court time that has been wasted on unsuccessful elements of a claim. In Dardis V Poplovka, Judge Barr awarded two days costs of a Hearing against a Plaintiff for unnecessarily prolonging the case by two days with an unsuccessful loss of earnings claim. In the 2016 decision of the Court of Appeal in Shannon V O’Sullivan, Mr and Mrs Shannon were awarded €90,000 and €130,000 respectively for general damages in the High Court. The Court of Appeal reduced the general damages of each Plaintiff’s claim to €40,000 and €65,000 respectively. The Defendant had served Calderbank letters offering €42,000 and €72,000 respectively and therefore neither Plaintiff beat the Calderbank offer. Judge Irvine in her judgement clearly endorsed the use and efficacy of Calderbank offers. She said, “it would not be just and fair on the Defendants… to be affixed with paying their own costs in respect of two appeals which they considered were unwarranted, having regard for the offers which they made”.

Calderbank Offer Letter Template

Summary

Calderbank Letter Template Nz

Calderbank offers are useful weapons for a Defendant to serve and the earlier the better. In addition, if the Defendant is out of time to serve a tender or lodgement, then a Calderbank offer is definitely worthy of consideration.

Calderbank Letter Template Word

If you have any queries in relation to Calderbank letters, Lodgements or Tenders, please contact Liam Collins.