A note for Calderbank nay-sayers


Encouragement to settlement of litigation: Chocolade correspondence


In Calderbank v Calderbank [1976] Fam 93, [1975] 3 WLR 586, (1975) FLR Rep 123, CA a far from light-weight Court of Appeal consisting of Cairns and Scarman LJJ and Sir Gordon Willmer held that, on costs, if a party has negotiated – albeit under the shield of ‘without prejudice, which means their correspondence cannot be placed before the court before there is a determination – then if any correspondence is said to be ‘without prejudice save as to costs’ then the correspondence can be referred to in support of a costs claim where a party considers that that party has done better than others on costs.


This – the ‘Calderbank rule’ – applies in all civil proceedings; save that since 2006 the Family Procedure Rules Committee (FPRC) have taken it upon themselves to alter the costs rules which apply to family financial relief proceedings by saying that: (1) save in defined circumstances only, there will be no order for costs (Family Procedure Rules 2010 r 28.3(5)) and (2) on any claims for costs the court can take no account of any ‘Calderbank rule’ material (r 28.3(8)). This is probably unlawful (a rule cannot change the law: see eg Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933) and can be challenged on a Boddington application (Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143: all of which is a subject for another day).


First, what is the position in civil proceedings generally? Three possibilities are: (1) ‘Without prejudice’, (2) ‘without prejudice save as to costs’ or (3) negotiations on settlement with reference to neither. What is the position on production of the correspondence in each situation at trial (if it can be produced to the court) or, after trial, on the issue costs?


  • If a letter is marked ‘without prejudice’ it is always covered by privilege (subject to the exceptions in Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436, CA); and it cannot be referred to either at trial or afterwards, save by agreement of the parties to it.
  • If a negotiation takes place and there is no reference to ‘without prejudice’, but also none specifically making the correspondence ‘open’ (ie so it can be referred to in court as part of any hearing) then the fact of negotiation – whether in correspondence, in meetings or in court – makes the discussion privileged. Any correspondence or other material on the issue cannot be referred to (Chocoladefabriken Lindt & Sprungli AG v The Nestlé Co Ltd[1978] RPC 287, Sir Robert Megarry V-C).
  • If a proposal letter is marked ‘without prejudice save as to costs’ it can be referred to after a judgment on the issue of costs (Calderbank v Calderbank [1976] Fam 93, [1975] 3 WLR 586, (1975) FLR Rep 123, CA).


Chocolade, costs and Mr Harrison


But what is the position of that the exchange (correspondence etc) which is not marked ‘without prejudice’: let us say, Chocolade correspondence. It cannot be referred to in the hearing. But on costs?  The present position on costs at common law is that, yes it can. In Sternberg Reed Solicitors v Andrew Paul Harrison [2019] EWHC 2065 (Ch) (2 July 2019), HHJ Hodge QC (as a High Court judge) considered an arbitrator’s award where, on review of his original decision on costs (that Mr Harrison should pay a substantial proportion of the costs), the arbitrator had said there should be no order for costs. He felt was entitled to say that Mr Harrison had to an extent done better than an offer he had made early in the arbitration. His loss on a further issue balanced that. HHJ Hodge QC agreed with the arbitrator. He refused permission to appeal.


The moral of the story is that if a party (A) wants to argue that A’s offer is ‘open’ A must say so in terms in any correspondence or other discussion about the offer. Otherwise as a matter of law it will be said to be covered by without prejudice privilege (see Chocoladefabriken (above)). And, of course, anyone taking this subject seriously must take account of CPR 1998 and its rules under Part 36 on ‘Offers to Settle’).


The subject of Calderbank correspondence is up for review by FPRC under Consultation in relation to the treatment of Calderbank offers when determining issues relating to costs’ (July 2019). I do not know where the consultation has reached and I do not know if the FPRC will take note of Mr Harrison’s case?

Costs: a litigation friend and child’s court proceedings


Liability for costs in child law litigation


In Barker v Confiànce Ltd & ors [2019] EWHC 1401 (Ch) (5 June 2019), Morgan J considered the extent to which a litigation friend and the child(ren), for whom the litigation friend acted, can be made personally liable for costs; and to what extent, in the particular case, any order for costs should be made. The costs applications of various parties to complex trust litigation arose where the children (Tom and Freya, now aged 18), through their mother and litigation friend (Ms Glover), had failed in their attempt to set aside a yet earlier consent order in the proceedings are in Barker v Confiànce Ltd & ors [2018] EWHC 2965 (Ch) (8 November 2018), Morgan J.


Morgan J concluded that in narrowly appropriate circumstances a litigation friend and a child involved in litigation might be subject to an order for costs. To what extent might his findings in relation to civil proceedings apply to children and litigation friends; and to children who themselves pursue proceedings without representation (Children Act 1989 (CA 1989) s 10(2) and (8); Family Procedure Rules 2010 (FPR 2010) r 16.6)?


Morgan J’s conclusion (as more fully explained later) was that:


  • Litigation friend – The court should say ‘the litigation friend is expected to be liable for such costs as the relevant party (if they had been an adult) would normally be required to pay’ (at [53])


  • Child litigants – (a) The court has a general discretion to make an order against a child litigant. (b) There is no rule that no order can be made against a child.


And in the process of all this, Morgan J mentioned the origin of ‘litigation friend’ (at [23]). Before CPR 1998 a child sued by a ‘next friend’ and defended a claim by the child’s ‘guardian ad litem’ (where the child was joined in care proceedings in 1984). In much earlier cases the next friend was ‘called, in law French, a prochein amy (or some similar spelling)’. And that ‘amy’ (‘ami’, ie ‘friend’, in modern French) survived into CPR 1998 – and now Family Procedure Rules 2010 (FPR 2010) – terminology as the hybrid ‘litigation friend’.


A litigation friend in family proceedings


Barker was civil proceedings. Such proceedings are governed by statute, common law and Civil Procedure Rules 1998. To what extent do these same provisions apply to children and their litigation friend’s in family proceedings? This question involves first a review of the statutory provisions in play in civil proceedings generally, as explained by Morgan J, and then a review of the common law and application of those statutory provisions specifically to family proceedings.


The starting point is that under Senior Courts Act 1981 s 51(1), in all civil courts (including in the Family Court: s 51(1)(ba)) costs are ‘in the discretion of the court’. By s 51(3): ‘The court shall have full power to determine by whom and to what extent the costs are to be paid’. This is subject to ‘rules of court’ as s 51(1) makes clear.


The way the court may exercise the s 51(3) discretion is dealt with by court rules, namely CPR 1998 r 44.2. Rule 44.2 applies fully in family proceedings says FPR 2010, save CPR 1998 r 44.4(2) which is disapplied by FPR 2010 r 28.2(1)). If a court decides to make a costs order, ‘the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party’ (r 44.2(2)).


If the court plans to make an order for costs, it bears in mind CPR 1998 r 44.2(4):


(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

(a) the conduct of all the parties; [and]

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful;…


‘Conduct’ under r 44.2(4)(a) includes the factors r 44.2(5): for example:


‘(a) conduct before, as well as during, the proceedings;…

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; [and]

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue….’


In conclusion on the rules, Morgan J touched on CPR 1998 r 46.4 (at [120]) which deals with ‘Costs where money is payable by or to a child or protected party’ and says that any such costs order ‘must be the subject of a detailed assessment’. This confirmed Morgan J’s view that an order can be made against a child; but, he accepted, he said: ‘it does not indicate anything as to the circumstances in which such an order might be appropriate’.


Position of a litigation friend


All of the above provisions (save for r 44.2(2)) apply equally to family as to other civil proceedings. However different rules apply to appointment of a litigation friend (or children’s guardian) as between CPR 1998 proceedings and family cases. Here the litigation friend or child, and any lawyer advising one or other (or both) begins to look down the Alice in Wonderland rabbit hole of differences between rules for civil and family proceedings; for there are at least four different types of child representative ((1) children’s guardian who may also be (2) CAFCASS – ‘an officer of the service’ – or (3) Official Solicitor or a litigation friend). A child (ie under 18), may (unlike in civil proceedings) act alone with permission from the court (Children Act 1989 s 10(8); FPR 2010 r 9.10(1)(f).


Differences in terminology there are between CPR 1998 and FPR 2010; but is there any real distinction arising from that fact when it comes to the costs liability of a litigation friend or child litigant? The point is important. Proportionately in family cases, adults are drawn in to act for children (and sometimes for other protected parties: FPR 2010 Pt 5) than in civil cases. The Barker order for costs calls for a comparison of appointment of a litigation friend in family proceedings as against in other civil proceedings.


Litigation friend in civil proceedings


In civil proceedings a person becomes a litigation friend under CPR 1998 Pt 21 (which applies to children and protected parties (ie individuals who lack capacity within the terms of Mental Capacity Act 2005)). By contrast FPR 2010 deals with acting for a protected party in Part 15 and for a child in Pt 16.


FPR 2010 Pt 15 repeats most of the provisions of CPR 1998 Pt 21, for protected parties only. CPR 1998 Pt 16, by contrast, is a notoriously tricky area of rule-making (‘complex’ was the term used by Black LJ, now Lady Black in the Supreme Court, of when a child could apply in her own right in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027). The potential for costs orders in relation to children and litigation friends is likely to apply only to r 16.6 (circumstances where child proceeds without a children’s guardian or litigation friend)) and Chapter 5 (entitled ‘Litigation Friend’; rr 16.7-16.15) of Pt 16.


FPR 2010 Pt 16 Ch 5, as far as it goes, is in much the same terms as CPR 1998 Pt 21. For example, the provision in issue in Barker was CPR 1998 r 21.4(3). The parallel provision is FPR 2010 r 16.9(2). Under the heading ‘Who may be a litigation friend [FPR 2010 adds: ‘for a child’] without a court order’ each of these rules say:


(3) … A person may act as a litigation friend if he –

(a) can fairly and competently conduct proceedings on behalf of the child or protected party;

(b) has no interest adverse to that of the child or protected party; and

(c) where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.


FPR 2010 r 16.9 omit the reference to protected parties, and, in r 16.9(2)(c), leaves out the words in italics. In Barker the appointment of Ms Glover was not by court order; but the fact also that she had not filed an undertaking (r 21.4(3)(c)) did not, said Morgan J, alter any liability she might have to pay costs (see [31]). There is no obvious reason why the same should not apply to the potential liability for costs of a FPR 2010 litigation friend who acts under r 16.9 and 16.10 (which sets out a procedure for the litigation friend to state that they wish to act; and see CPR 1998 r 21.5).


Liability of litigation friend and of a child


Morgan J answered the questions set out in the first paragraph of this article – whether a litigation friend and child can be made liable for costs as now explained; and in the process he held that the law was not correctly stated by Halsbury’s Laws, 5th ed., Vol 10 (2017), Children and Young Persons (‘Halsbury’s Laws Vol 10’).


The general position of litigation friends, said Morgan J, was that they should expect to start from the same position as any unsuccessful litigant (subject to where particular circumstances justified another order):


[53] [Where a litigation friend] has acted for an unsuccessful child party, the court should apply the general approach that, as regards costs, the litigation friend is expected to be liable for such costs as the relevant party (if they had been an adult) would normally be required to pay. The governing rule is that the court has regard to all the circumstances of the case and it is open to the litigation friend to point to any circumstance as to their involvement in the litigation which might justify making a different order for costs from that which would normally be made against an adult party.


The child was in a different position:


[121] … There is no general rule that the court will not make an order for costs against a child unless they have been guilty of fraud or gross misconduct. Instead, as always, the general rule is that the court must consider all of the circumstances of the case.


Thus the position was not as Halsbury’s Laws asserted. It was not impossible for the court to make any order against a child, nor that an order can only be made where child is fraudulent. Earlier cases showed orders made against children ‘even where they had litigation friends’ (at [119]); nor does r 21.4(3)(c) imply ‘a general rule that a child who is an unsuccessful claimant will not be ordered to pay costs’.


‘Such costs as the relevant party (if adult) would normally be required to pay’


For the representative of a child – other than a CAFCASS officer or the Official Solicitor, as children’s guardian or litigation friend – the question must be where any proceedings are contemplated: is there a risk of a costs order ‘normally’ if an adult took proceedings. In practice in family proceedings which do not involve money, divorce or domestic abuse, there are only rarely orders for costs; and even in matrimonial financial proceedings costs order applications go through a FPR 2010 r 28.3 costs strainer (no orders for costs in financial relief proceedings). Most CA 1989 Pt 2 (ie ‘private law’) non-parent proceedings (eg by a grand-parent) proceed only with permission of the court (CA 1989 s 10(2)); and that permission filter, in the absence of the court being misled on an application, is likely to provide an answer to any claim for costs against a s 10 applicant. ‘Normally’ costs applications in family proceedings are rare.


Application can be made by or for a child of married parents under Matrimonial Causes Act 1973 (MCA 1973) s 23(1) and as envisaged by FPR 2010 r 9.10. An application to vary a settlement in which a child may have an interest requires the court to appoint a guardian who does not have to be the Official Solicitor (FPR 2010 r 9.11). An application for ‘any sum due under’ a Family Court order due to a child can be made by ‘a person who looks after a child’ (Matrimonial and Family Proceedings Act 1984 s 31L(4))). An order for costs could be made in any of these proceedings if a court thought the circumstances justified; including that a respondent parent had proposed settlement on terms better than the court finally ordered (Calderbank v Calderbank [1976] Fam 93, [1975] 3 WLR 586, CA). (A claim for financial relief under CA 1989 Sch 1 cannot be made by a child under 18 (see paras 1 and 2: only parents, those with a child living with them under a child arrangements order etc (para 1(1)) can apply).)


Any of these claims might involve a claim for costs against a litigation friend in the rare circumstances where such would be appropriate. The fact that a child needs permission from the court to proceed (in private law children proceedings: CA 1989 s 10(8); and for matrimonial financial relief: FPR 2010 r 9.10(1)(1)(f)) makes it almost inconceivable that a child be subject to an order for costs. An exception to that might be that child has pressed on with any claim in the face of warnings from the court (a lawyer who acted for a child who proceeded in such circumstances might also be at real risk of a wasted costs order: but that is quite another subject…).


Barker costs order bites back


The question for the litigation friend still comes back to what order might the court say an unsuccessful party should ‘normally be required to pay’. The costs applicant in family proceedings has a very narrow passage to pass to frame an order for costs. That narrowness caveat applies to the litigation friend, and even more so to a child litigant. Orders for costs, especially in children proceedings, are rare in FPR 2010 proceedings.


All that said, the provisions at large in Barker apply in family proceedings, subject to what other orders might normally be made in family litigation. Reflections on the Barker case – as here – can only warn would-be child litigants and any litigation friends (or other non-institutional child representatives), that there just may always be a Barker costs bite in a narrow range of cases.


David Burrows

30 August 2019