Process

Without prejudice save as to costs

Also called: Part 36 offer, Calderbank offer

A settlement offer protected from the court during the main case but shown to the court when deciding who pays costs.

Definition

"Without prejudice save as to costs" (WPSATC) is a variant of the without prejudice rule that allows a settlement offer to be kept confidential during the substantive hearing but produced to the court after judgment, when the parties argue about costs. A formal version of this offer — made under Part 36 of the Civil Procedure Rules — triggers automatic and significant costs consequences if the receiving party fails to beat the offer at trial. A claimant who fails to beat a defendant's Part 36 offer will usually lose their right to costs from the date of the offer and may be ordered to pay the defendant's costs. A defendant who fails to match a claimant's Part 36 offer faces enhanced interest and an extra payment of up to 10% of the award.

In practice

If you want to make a formal settlement offer, use the Part 36 procedure — it creates automatic costs consequences that make the offer difficult to ignore. Keep all WPSATC correspondence separate from "open" correspondence. Do not confuse this with a plain "without prejudice" offer, which has no automatic costs consequences. The Civil Procedure Rules, Part 36, are published on the Ministry of Justice website.

Related terms

Without prejudice A label put on settlement offers and negotiation letters so they cannot be shown to a court if talks break down. Settlement An agreement that ends a dispute without a court deciding it. Mediation A voluntary process where a neutral person helps both sides reach their own agreement. Judgment The court's final decision in a case. Claim A formal request asking a court to order something, such as payment or the return of property.