Consultation in relation to the treatment of Calderbank offers when determining issues relating to costs

Closes 31 Oct 2019

Recent amendment to PD28A

The FPRC is concerned that insufficient emphasis is given to encouraging parties to engage reasonably and responsibly in negotiations. In particular, there was concern that little positive guidance was given in PD28A to assist the parties to understand the likely cost consequences of failing to litigate sensibly and of failing to engage in sensible negotiations and/or of making an open proposal which is significantly higher or lower than the award ultimately made by the court. It was the view that this was already the position, but the PD required amending to make this clearer. As such, paragraph 4.4 of PD28A was amended with effect from 27 May 2019 to include new text as follows:

"The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court. Where an order for costs is made at an interim stage the court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets."