A recent Court of Appeal decision provides useful guidance on how the court will determine the effect of a “without prejudice save as to costs” (or Calderbank) offer in a non-money claim: Coward v Phaestos Limited and others  EWCA Civ 1256.
In such a claim, the court cannot simply compare the total amount offered with the total amount recovered, as it can in a money claim, to determine whether a party has beaten its opponent’s offer. Instead the court must assess the comparative significance of the different elements of the offer, taking into account the various respects in which the offer provided for a better or worse outcome than the result at trial. Although each case will turn on its facts, the decision suggests that, where an injunction is sought, a Calderbank offer that does not offer an injunction or equivalent undertakings may be unlikely to provide costs protection if the injunction is ultimately granted at trial.
Alan Watts, Andrew Moir and Heather Newton (who acted for the successful respondent to the appeal) have published an article in the November edition of PLC Magazine which looks at the decision. You can download a PDF here: Recovering costs: Calderbank offers in non-money claims.