The Calderbank offer to settle has been enshrined in our Rules of Court since 2010 and since 1975 has been the best way to legally enforce cost consequences for reasonable offers to settle. Emerging and imminent injury lawyers alike must understand and apply these principles of settlement.
History of the Formal Offer
Prior to the 2010 civil rules a prudent personal injury lawyer would often make offers with the following wording:
“THE Plaintiff offers to settle this proceeding on the following terms:
- The sum of $[settlement amount] after deducting benefits paid or payable under Part 7 of the Regulations made pursuant to the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 and amendments thereto; deductions pursuant to Section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 and amendments thereto; and any advances paid to date;
- Costs and disbursements in accordance with Rule 37B and 57 up to the date of acceptance; and
- This offer to settle does not expire by reason that a counter offer is made or given.
THE Plaintiff reserves the right to bring this offer to the attention of the Court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding. TAKE NOTICE in the event the Plaintiff obtains a judgment for the amount specified in the offer or a greater amount the Plaintiff will be seeking double costs from the date this offer was delivered.”
The best outcome for costs applications after a successful injury case included the application of the Calderbank principle to obtain double costs(Calderbank v. Calderbank (1975), 3 All E.R. 333). Some of the best personal injury lawyers, judges and masters developed the common law Calderbank principle.
Surprisingly in the actual Calderbank case, the letter, which had been written on a “without prejudice” basis, was not actually referred to by the Court considering a costs issue for that reason. Nevertheless, in the result, the offer to settle in that case was considered because the offer was contained in certain other admissible affidavit material.
A practice then developed that it would be possible to structure an offer to settle in such a way that it would be “without prejudice” concerning the disposition of the case but the offer could be later considered relative to costs on the basis that the party advancing had anticipated referring to it as regards the disposition of costs. This would permit parties to make such informal offers to settle lawsuits on the understanding that it was intended only to advance the correspondence before the court on issues arising as to legal costs. (see Higgs v. Fainstein (1993), 72 B.C.L.R. (2d) 24 (B.C.S.C.)), and Sandegren v. Hardie,  B.C.J. 762 (QL)).
However in 2002 along came Brown v. Lowe,  B.C.J. No. 76 (QL), wherein the Court of Appeal made it cleat that the civil rules were a complete code and, “Calderbank should not be considered law in this Province today”.
Before the 2010 changes in the Rules the Court of Appeal did back away from Brown v. Lowe, saying that it does not necessarily follow that the Calderbank procedure might not be considered appropriate (2002 BCCA 494).
In 2003 a statutory version of the Calderbank letter was added to the Rules. It was found to be ineffective to achieve its intended purpose of introducing more options with respect to offers to settle. (See Roach v. Dutra, 2010 BCCA 264, 5 B.C.L.R. (5th) 95, at paras. 46-49.).
In 2008 both Rules 37 and 37A were repealed and replaced by Rule 37B.
The Modern Approach
The 2010 offer to settle rule includes the common law practice and the required wording is eerily similar. A formal offer to settle must now contain the following sentence:
“The …………[party(ies)]…………, …………[name(s) of party(ies)]…………, reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding.”
The difference is that rule 9-1(1) imposes technical requirements in the definition of an “offer to settle”. Not all settlement offers exchanged between the lawyers will constitute an offer to settle within the meaning of the Rule.
In order to qualify, at minimum an offer must be made in writing by a party, be served on all parties of record, and contain an express reservation of the right to bring the offer to the attention of the court for consideration in relation to costs, after the court has pronounced judgment on all other issues in the proceeding. At best the lawyer’s offer will articulate the merits of the claim and briefly describe the top injury claims.
Accomplished injury lawyers with Supreme Court personal injury cases will want to review my article on the case development in the area of Making an Offer to Settle.