Calderbank Offers – The secret to Family Law settlements which leave nothing on the table.
It’s pretty rare for clients to come to us and tell us that they are ready to engage in a family law court battle. Rather, the majority of our clients come to us and seek alternative methods of resolution, so that legal fees are not generated where there is no benefit to either side. There is a significant emphasis on alternative dispute resolution methods in the family law space right now, and at Lagom Family Law we are at the forefront of this trend and it is fully integrated into practice.
One alternative resolution method can be utilising Calderbank offers. In this blog post, we will cut through the ‘legal jargon’ of Calderbank offers, explaining what they are, how to identify if you have received one, what distinguishes them from other offers, and how experienced lawyers best consider them in the context of settlement negotiations.
What is a Calderbank Offer? What sets it apart from other Offers?
Derived from the English Court of Appeal decision in Calderbank v Calderbank, a Calderbank refers to a type of settlement offer made by one party to the other marked “without prejudice, save as to costs”. This adds an additional layer of confidentiality and ensures that the offer cannot be presented to the court as evidence if the matter proceeds to a hearing.
However, if a successful party declines an earlier settlement offer from the unsuccessful party, the rejection can be used as evidence to determine a parties’ eligibility for a possible cost recovery from the other party. This can be a powerful motivator for parties to engage in sincere, genuine negotiations and seriously consider the opposing party's proposals, providing insight into the potential costs if the matter proceeds to trial.
When is a Calderbank Offer Used?
Firstly, we must point out that as experts in Family Law, Lagom Family Law are routinely engaged in matters where strategic decision-making is crucial, particularly in skilled negotiation of client interests. Our lawyers have a deep understanding of the factors involved in settlements and negotiations.
We will carefully analyse prospects of negotiated positions, assess implications, and provide our clients with comprehensive advice tailored to their specific situation. The following cannot be interpreted as advice without taking proper instructions and assessing the trajectory of a matter or negotiations in their entirety.
In saying that, Calderbank offers are typically employed when a party wants to make an offer in good faith to settle, but do not want that offer to be used against them should the matter be heard before a judge who then deals with the issue differently.
Calderbank offers can be made at any stage during proceedings, whether the matter is litigated or not, and prior to or after the final hearing. As Calderbank offers are usually an attempt to resolve the matter, if an offer is made after the final hearing, it will only be to determine the issue of costs. Parties may also choose to make a Calderbank offer when they believe their chances of success at trial are uncertain, or when they believe that continuing to litigate the matter will be expensive or time-consuming.
This means that if a party is willing to make a really competitive offer to just try and get the thing over and done with, they can be free to do so without the other party coming back at a later date and trying to argue that that party was willing to accept a lower outcome at the time the offer was made.
How to Best Consider a Calderbank Offer in a Settlement
When faced with a Calderbank offer, careful consideration is paramount. Here are four crucial factors our team often bares in mind when working with clients:
1. Prospects of success at Court or a final hearing: Seek legal advice to evaluate your chances of success should the matter proceed to a final hearing. This assessment, combined with the cost of the Calderbank offer, will aid in determining the most prudent course of action. Alternatively, your legal representative can assist in formulating a reasonable counter-offer.
2. Value of your case and associated costs: Realistically assess the value of your asset pool, including financial and emotional considerations, while contemplating the cost of continued litigation. Particularly in family law matters, it is vital to weigh the value of your objectives against the expenses and potential delays incurred by rejecting the offer and moving forward with the case. A great example of this is shifts in the property market or interest rates. We have had clients pursue a position against our advice and by the time the matter has gone to Court, it has resulted in the assets they fought to retain change value to such an extent they have lost hundreds of thousands in real property value in their split. Winning at all costs don’t favour those who cannot separate emotion from the reality of negotiations.
3. Potential costs of prevailing: Although the court may rule in your favour at a final hearing, both parties may have depleted resources on legal fees, leaving you with nothing significantly less than what you could have had earlier if the matter had settled. Carefully consider the potential financial consequences of "winning" in light of the total pool and financial circumstances.
4. Reasonableness and alignment with your interests: Remember that you are not obligated to accept a Calderbank offer, even if it seems reasonable. However, rejecting a reasonable offer and proceeding to trial may result in an order to pay the other side’s legal costs.
At Lagom Family Law, we specialize exclusively with family law matters. Our team of experienced and knowledgeable lawyers understand the nuances of family law disputes, including the intricacies of Calderbank offers. We stay updated with the latest legal developments and have a proven track record of successfully handling complex family law cases.
Negotiating and formalising a property settlement requires skill and finesse. Our lawyers are adept negotiators who will advocate for your best interests. We will strive to secure the most advantageous terms in line with your goals, while ensuring that your rights and entitlements are protected.
With our strong negotiation skills, we aim to achieve a resolution that provides you with certainty and by running a client conference and advice session with one of our lawyers, can often uncover excellent value for clients in a short amount of time invested together in a planning and strategy session.
To book a Discovery Call, follow the link here or contact us at the office on (02) 8379 1835.
Author: Nancy Zou, at Lagom Family Law
** The information contained in this blog is general and does not constitute legal advice on your particular maner. You should consult a lawyer specialising in family law for independent legal advice regarding your particular circumstances **
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Lagom Family Law is a boutique legal practice lead by Principal Lichee Hogland who strives to achieve the best possible outcome for her clients whilst being approachable and respectful.