Negotiations

Where the claim for costs is reasonable and there are no concerns with regard to the proportionality of the costs, it is reasonable to seek an interim payment for 65 – 70% of any costs that are subject to detailed assessment and 90% of any budgeted costs that have already been approved by the court.

A Calderbank offer is headed ‘without prejudice save as to costs’. The costs consequences of Calderbank offers are governed by CPR 44. The court will have discretion over costs of assessment. A Calderbank offer provides greater flexibility than a Part 36 offer; it allows the party making the offer to be flexible when making terms about the length of time the offer remains open for acceptance, costs of assessment and payment terms.

Part 36 goes beyond Part 44 in that it sets highly prescriptive terms. Part 36 offers must be open for acceptance for at least 21 days. They also cannot be withdrawn or amended without the court’s permission. Despite the rigidness of Part 36, it provides more certainty as to how costs will be treated. The Court does not have the same level of discretion as when a Calderbank offer is made. Furthermore, where the offeror beats their own Part 36 offer at detailed or provisional assessment, they will also be entitled to the Part 36 benefits set out under CPR 36.17 in relation to costs and interest.

In most cases we are able to reach an agreement on costs. Only a very small percentage of cases proceed to detailed assessment. It is more common for cases to proceed to provisional assessment (where the costs claimed are £75,000 or less) because provisional assessments are undertaken on the papers only and the parties are not required to make oral submissions.