''Calderbank v Calderbank''
976
Year 976 ( CMLXXVI) was a leap year starting on Saturday (link will display the full calendar) of the Julian calendar.
Events
By place Byzantine Empire
* January 10 – Emperor John I Tzimiskes dies at Constantinople, after re ...
Fam 93,
975
Year 975 ( CMLXXV) was a common year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* Arab–Byzantine War: Emperor John I raids Mesopotamia and invades Syria, using ...
3 All ER 333 (EWCA); was an
English Court of Appeal
The Court of Appeal (formally "His Majesty's Court of Appeal in England", commonly cited as "CA", "EWCA" or "CoA") is the highest court within the Senior Courts of England and Wales, and second in the legal system of England and Wales only to ...
decision establishing the concept of a "Calderbank Offer".
A "Calderbank Offer" can often be identified by the disclaimer "
without prejudice
Prejudice is a legal term with different meanings, which depend on whether it is used in criminal, civil, or common law. In legal context, "prejudice" differs from the more common use of the word and so the term has specific technical meanings. ...
, save as to costs".
Facts
After a marriage of 17 years, Mr and Mrs Calderbank separated and filed for
divorce
Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the ...
, 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
usbandthe 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.
Judgment
The Court decided that if a winning party in litigation refuses an earlier settlement offer made by the losing party, the losing party may produce the settlement offer as evidence towards the appropriate level of costs payable. In practice, if the winning party's award of damages is less than the earlier settlement offer, the losing party may have to pay less costs to the winning party than normal.
On the facts, the Court upheld the lower court's quantum of the £10,000. However, the Court reversed the burden of paying legal costs from Mrs Calderbank onto Mr Calderbank (although Mrs Calderbank remained liable for costs up to "14 days after 14 August", the affidavit having been sworn on 10 August). The Court held that the legal proceedings had been unnecessarily prolonged by Mr Calderbank's earlier refusal to accept Mrs Calderbank's settlement offer of around £12,000.
References
{{Reflist
External links
Link to full text of case
Civil procedure
Court of Appeal (England and Wales) cases
1975 in case law
1975 in British law