The relationship between Calderbank offers and part 36 offers in the Court of Protection, and the exercising of the Court of Protection’s jurisdiction in relation to costs, have been under scrutiny in the Court of Protection recently.
A Calderbank offer is an offer of settlement made without prejudice save as to costs. This is an alternative to an offer made under part 36 of the Civil Procedure Rules. A Calderbank offer provides the offeror with greater flexibility than a part 36 offer as a part 36 is strictly governed by CPR rules.
In the recent case of Re A (A Patient), presided over by the President of the Court of Protection, the Court demonstrated their application of their jurisdiction in relation to costs. This case is noteworthy due to the fact that the applicant represented themselves and that the applicant made multiple applications to the court, which heavily escalated their costs. In this case, the court considered a costs warning and the effect of this, whether the applicant could meet the liability of costs and a Calderbank offer.
Costs in the Court of Protection are unusual as, due to part 156 of the CPR rules:
‘Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate.’
Rule 159 of the CPR rules provides a precedent for departing from this, however:
‘(1) in deciding whether departure is justified the court will have regard to all the circumstances, including: (a) the conduct of the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) the role of any public body involved in the proceedings.’
In Re A, it was found that a costs warning being sent does not necessarily mean that costs will be ordered – as the applicant wished for. It was found, however, that a Calderbank offer could be taken into consideration when determining costs – meaning that open offers and without prejudice offers can both be considered in the Court of Protection.
Whilst deciding on costs and making costs orders can be a tricky process, a costs warning does not mean that an adverse costs order is guaranteed. Furthermore, an evaluation of the ability to pay costs is not always required. It is also clear now that in Court of Protection cases, Calderbank offers can be considered when costs are being determined – however, again, these are not guaranteed to secure an adverse costs order. It is important to note that the Court has great discretion in relation to costs orders and, until any future policy changes arise, it is important to take great care with any offers and warnings sent.