Drafting Calderbank Letters and Offers of Compromise Materials
This material, prepared by barristers Andrew Downie and Shannon Jenkins for a Leo Cussen Centre for Law CPD session (4 Feb 2021), provides comprehensive instruction on the preparation, strategic use, and legal consequences of formal offers of compromise and informal ‘Calderbank’ offers in Australian civil litigation. It outlines the statutory and rule‑based requirements for offers under the Supreme Court of Victoria (VSC), Federal Court of Australia (FCA), and the Victorian Civil and Administrative Tribunal (VCAT), including timing, acceptance periods, content requirements, and cost consequences. The document analyses the strategic objectives of offers—primarily cost protection and settlement—and contrasts the certainty of formal offers with the discretionary nature of Calderbank offers. It details the criteria courts consider when assessing the reasonableness of rejecting a Calderbank offer, discusses fallback scenarios when a formal offer fails to comply with rules, and provides practical drafting templates and example wording. Comparative tables summarise cost consequences across jurisdictions and highlight differences in multi‑party proceedings, pre‑litigation offers, and appeal regimes. The material concludes with practical take‑away messages for practitioners on when to use each type of offer and how to protect client costs effectively.
Topics
Strategic Purpose of Offers: Cost Protection and Settlement
Explains that the primary aims of both formal offers of compromise and Calderbank offers are to secure cost protection for the offeror and, secondarily, to encourage settlement of the dispute.