What does “Without Prejudice Save as to Costs” mean?

All offers marked “without prejudice save as to costs” are known as Calderbank offers. When negotiations take place on this basis, the correspondence is only admissible in Court when the questions of costs arises. For example, if a party refuses a reasonable offer and goes on to lose their case in Court, they may be penalised in costs for not settling earlier.

Where a party makes a reasonable offer to settle a case, the offer is then rejected by the other party and the other party win the case but do not get awarded more money than what had been offered, the Court will consider this when awarding costs. In these circumstances, the party who made the offer would be allowed to show the Court the offer made on a “without prejudice save as to costs” basis. If the party had accepted the offer, neither party would have incurred the further costs of attending Court.

It is therefore important that where a party wishes to make an offer on a ‘without prejudice save as to costs’ basis, so that it will be admissible in Court when determining the issues of costs, to ensure this it is expressly stated on the offer.

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Janeet Jawanda

Solicitor