22 Jan Adam Paterson writes on a Reflection on the Potential Revival of the Calderbank Offer
Family practitioners have had their say as to whether the “Without Prejudice Save as to Costs” offer is brought back into practice. The results are awaited.
This divisive subject but certain issues raised by it are agreed by most if not all family practitioners:
- It would be better if parties to litigation were forced to take meaningful attempts to settle seriously
- It feels desperately unfair when a party finds themselves at final hearing despite having done their utmost to settle during the proceedings because the other party simply has no interest in negotiation either because they have a romantic notion of a “day in court” or because the proceedings are exerting pressure on their ex-partner
- At the heart of the good work that the Family Court does lies a discretion and a duty to consider fairness to all parties. To whatever extent Calderbank offers may return, they must work within those crucial principles.
Whatever your view on the debate, what is clear to us is that if any form of Calderbank is to come back, having good representation becomes crucial. Does an offer create a costs risk at final hearing such that it needs serious consideration? Is the title being used as a scare tactic? With everything else the litigant in person has to deal with, can they be expected to contend with these complexities such that they can be punished in costs at the end of a final hearing?
The aim at Schneider Financial Solutions is to assist those people going through the Court process in obtaining suitable representation in a way that is affordable and meets their needs. Litigation lending is not suitable for all situations but in the right cases, it unlocks the door to an equal footing in proceedings. With that comes empowerment but also, hopefully, a realistic expectation and proper advice on any offers made. It follows that representation does not lead to a will to fight but, rather, an ability to fight if required but the knowledge and comfort to settle if appropriate.