The utility of the Calderbank offer in gaining costs protection: John McKeown v Diana Langer [2021] EWCA Civ 1792


The Court of Appeal recently handed down its judgment in John McKeown v Diana Langer, which involved a discrete but important issue concerning whether a global Calderbank (or WPSATC) offer is to be treated as having the same effect as an offer made pursuant to CPR Part 36, in the context of a split trial (such as liability preceding quantum). In particular, where the judge is aware of the existence of a Calderbank offer but unaware of its terms in determining the costs at stage 1, is the judge bound to treat such an offer as equivalent to a Part 36 offer and defer a ruling on costs until the conclusion of all stages of the litigation?

In dismissing the appeal, Green LJ (with whom Nugee and Lewison LLJ agreed) held that there are important differences between a Calderbank and Part 36 offer and, both as a matter of policy and following the wording of Part 36, there is no reason to treat a Calderbank offer as equivalent to a Part 36 offer in this context. The judgment may well call into question the general utility of the making of Calderbank offers in affording the offeror protection as to costs.

Maxwell Myers, led by Jamie Carpenter QC of Hailsham Chambers, appeared for the Appellant.

The full judgment can be found here.