BB v Helena College Council Inc t/as Helena College [No 2]

The case of BB v Helena College Council Inc t/as Helena College [No 2] involved a dispute between BB and Helena College, with the court being asked to consider the issue of costs incurred by one third party in proceedings against another third party. Helena College had initially been a third party in proceedings between BB and another entity, and had now sought to recover costs from BB in relation to the third party proceedings. The case raised issues around the relevance and effect of a Calderbank offer made by BB in the context of the third party proceedings.

The court needed to decide whether the Calderbank offer could be considered in assessing the costs incurred by Helena College against BB. A Calderbank offer is a formal offer made by one party to another without prejudice save as to costs, which if rejected, may be taken into account when considering the costs of the proceedings. The court considered the purpose of such an offer, which is to encourage settlement and avoid unnecessary litigation, and whether this purpose was undermined if the offer was considered in the context of costs between third parties.

The court held that the Calderbank offer could indeed be taken into account in determining the costs between Helena College and BB. The reasoning was that the offer was relevant to the overall conduct of the proceedings, and its terms and circumstances could inform the court's assessment of the proportionality and reasonableness of the costs claimed. The court noted that the Calderbank offer did not necessarily have to be made directly between the parties whose costs were being assessed but could still be relevant in the context of third party proceedings. The court found that the offer was made in good faith and with a view to resolving the dispute, and thus its terms could be considered in the costs assessment.

As a result of the court's decision, Helena College was entitled to have the Calderbank offer taken into account when assessing the costs it sought to recover from BB. The court ordered that the costs incurred by Helena College in the third party proceedings be assessed, with due regard to the terms of the Calderbank offer. This meant that the amount of costs that Helena College could recover from BB was potentially reduced by the terms of the offer, reflecting the court's view that the offer was a relevant factor in the costs assessment.