CIArb AWARD WRITING TECHNIQUES: DEALING WITH 'CALDERBANK OFFER'

CIArb AWARD WRITING TECHNIQUES: DEALING WITH 'CALDERBANK OFFER' 

One party, in the view of not succeeding in its case, may offer to the other party to settle amicably. In the event that an offer is made, the tribunal must avoid of knowing the content of the offer at all costs, to maintain impartiality. The tribunal must make a decision such as:

Calderbank Offer

1. In the Hearing dated [DATE], the Respondent wanted to make a ‘settlement offer’ to the Claimant in a ‘sealed-envelope’.
2. After hearing the submission of the parties with regard to the ‘settlement offer’:
   1. I would foremost presumed that the Respondent has offered a ‘Calderbank Offer’ to the Claimant to settle their dispute.[1] A ‘Calderbank Offer’ is a ‘without prejudice save as to costs’ offer to settle at a sum greater than that awarded.
   2. Having to consider that ‘settlement of dispute’ is of the paramount importance in any arbitration, I will have to consider whether the Claimant would reasonably accept the offer? If so, I shall only require to issue a ‘consent award’ to settle the dispute.
   3. If the offer was rejected on unreasonable ground, I may award cost to the losing party, departing from the doctrine of ‘costs follow event’ as in the case of Carver v BAA plc [2008] CA 22 and other authorities[2].
3. I DIRECTED the parties shall deposit with me, a sealed envelope, only at the end of the hearing, which is to contain either a sealed offer or a statement that no offer has been made.

 [Choose either]

1. At the end of the Hearing, I FIND that the ‘sealed envelope’ contained ‘no offer has been made’. I will not depart from the general rule that ‘cost shall follow event’ and I HOLD that the losing party shall pay the other party the costs of the arbitration which I shall determine, in section [S. Cost of the Arbitration], of this award.

  [Or]

1. At the end of the Hearing, I FIND that the ‘sealed envelope’ contained and offer of […]. However, the Claimant did not accept the offer. Therefore, I will depart from the general rule that ‘cost shall follow event’ and I HOLD that the party that rejected the offer pay the other side's costs even though it "won" on the merits of the case, in section S. Cost of the Arbitration, of this award.

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[1] Tramountana Armadora v Atlantic Shipping[1978] 2 All ER 870; Cutts v Head [1984] Ch 290; Centreland Management v HSBC Pension Trust [2013] EWHC 3238 (Ch.)
[2] Vogelaar v Callaghan [1998] 1 IR 88, Pepys v London Transport Executive [1975] 1WLR.234; Multiplex Constructions (UK) Limited v Cleveland Bridge UK Ltd [2005] EWCACiv139; Cleveland Bridge Dorman Long Engineering Ltd [2008] EWHC 2220 (TCC).