Conduct in Family Law cases: consequence-free environment?

A divorce case in which the parties’ costs reached some £2 million, and involving some ‘breathtaking’ lies, has caused cries from the legal profession that the old ‘Calderbank’ rule should be revived as a mechanism by which parties can be punished for their conduct in family proceedings.

It used to be that a party could make an offer on a without prejudice save as to costs basis (from a case called Calderbank). If that offer was unreasonably rejected or ignored, it would have significant impact on the costs – meaning the unreasonable party paying the other party’s costs. Such a letter would remain ‘secret’ from the Court until after a final decision had been made.

This mechanism was abolished by the introduction of costs rules which came into force on 3rd April 2006.

This article, and the comments which follow it, make an interesting case for the re-introduction of the Calderbank principle.

As a Dispute Resolution lawyer, I am often surprised by stories from my Family Law colleagues as to conduct of various parties (always on the other side, of course !). The conduct complained of would no doubt have serious cost consequences were the same to occur in a business or other civil dispute. The whole regime of not ‘punishing’ unreasonable conduct seems to give rise to a consequence-free attitude by some litigants.

So, for my vote: bring back Calderbank..!

A High Court judge has made clear that his costs judgment against a dishonest party should act as a deterrent to others considering deceiving the court.