The keynote speakers at the conference were Rhys Taylor from 36 Family who spoke on ‘Does the civil costs regime help or hinder settlement and how does this inform the debate on costs in financial remedy proceedings?’, and Philip Marshall QC from 1KBW who considered ‘The history of Calderbanks and the Family Procedure Rules Committee Costs Working Group consultation.’
Philip Marshall has been involved in some landmark family cases including White v White and Miller; McFarlane in the House of Lords. He has also recently been involved in a working group regarding how to encourage settlement through costs regimes at a very high level and was therefore able to offer a unique insight into the problems and possible solutions regarding Calderbank offers.
The subject of the debate was whether Calderbank offers should be re-introduced in family law in England as a way to encourage parties to settle, which is currently being considered and therefore a pertinent topic for discussion. The debate teams were headed by Simon Bruce and Samantha Singer and Nigel Shepard and Camini Kumar.
With the cost and stress of litigation, parties are generally encouraged to reach agreement and avoid expensive hearings. Calderbank offers are ‘without prejudice save as to costs’ offers of settlement made by one party to the other. As they are without prejudice they are not shown to the judge until after a final decision is made. At that point the judge can then consider whether one party should pay some or all of the other party’s costs due to their willingness (or unwillingness) to agree to a settlement offer.
The idea is that if one party is being reasonable and trying to settle and avoid expensive litigation, and the other side is being unreasonable and rejecting fair offers of settlement, they should be ‘punished’ and the reasonable party not lose out. Calderbank offers no longer apply in English law; however in Jersey they are still used with judges having a wide discretion to consider the merits of a case including the offers of settlement made. Local Registrar Samantha McFadzean chaired the debate and was able to argue that Calderbanks work effectively in Jersey because judges have more discretion and less cumbersome procedural rules.
The original Calderbank offers arose from a case called Calderbank v Calderbank and so the way that costs would be awarded in these cases was quite discretionary, based on the individual facts before a judge. However, when procedural rules were introduced the area became more complicated and costly and it was argued that this increased costs and litigation rather than decreasing it.
Arguing for the reintroduction of Calderbank offers, with some amendments, in England was Nigel Shepard of Mills & Reeve. He believes that Calderbank offers meant there was an incentive to settle because parties were very aware that costs could be ordered against them if they refused a settlement offer that they did not ‘beat’ at court. He thinks that the court should have the ability to take into account without prejudice offers when it comes to deciding on costs, and that this should be combined with a requirement to make open offers at an earlier stage.
On the other side, Simon Bruce from Farrer & Co was staunchly opposed to the reintroduction of Calderbanks, as was Samantha Singer from QEB. She presented her case against the reintroduction of Calderbanks by drawing on her experience of how time consuming, expensive and cumbersome the Calderbank arguments were. Immediately after a decision had been made the lawyers would then get their Calderbank paperwork out and had to work through who made what offers when and consider whether the judge’s final order was better or worse than the offers made, which could increase costs and frustration in many cases.
While there were well-argued strong opinions on both sides, the overall result was declared a draw.
Advocate Barbara Corbett said: “I was chairing the conference and we were delighted that our local Family Court Judge Samantha McFadzean agreed to chair the debate. You need an authoritative hand in debates with high level barristers and QCs involved and she did an excellent job.”
The event was sponsored by specialist Jersey family law firm Corbett Le Quesne along with London-based firms Mills & Reeve and Farrer & Co.
The next Jersey International Family Law Conference will be taking place on Friday 2 October at L’Horizon Hotel and Spa.