Pride and Without Prejudice: comparative approaches to settlement offers from England, Singapore, Thailand, Vietnam and the Philippines29 October 2025

For example, an aggressive letter threatening litigation but not proposing any form of compromise, would likely be deemed ‘open’ to disclosure to a court/tribunal, even if marked WP by the sender.

Without Prejudice Save As To Costs/Calderbank Offers

“Without Prejudice Save As To Costs” (“WPSATC”) is a qualified exception to the WP protectionary regime.

WPSATC communications remain privileged during formal court/arbitral proceedings, but can be disclosed after a judgment/award is handed down, to persuade the court/tribunal that a party has acted reasonably in trying to settle the dispute before the final decision, and therefore influence how the court/tribunal allocates costs between the parties.

This is the basis for the ‘Calderbank offer’ (based on the case of Calderbank v Calderbank [1975] 3 All ER 333), and is a common settlement tool, particularly in arbitration, and an alternative to the stricter regimes which apply under the rules of court in jurisdictions such as England and Singapore.

Because WPSATC/Calderbank offers can be shown to the court/tribunal once its final decision has been made, they allow parties to make strategic settlement offers, capable of influencing how costs are apportioned between them if the dispute goes to a final decision, but without undermining the offeror’s quantum or liability position during the formal proceedings.

As to how they influence costs – typically, if the recipient refuses the offer, and then fails to better it in a judgment/award, its refusal will be considered unreasonable by the court/tribunal, resulting in the offeror receiving a better costs outcome than it would otherwise have done – i.e. recovering a greater proportion of its costs from the recipient of the offer.

However, it should be held in mind that the applicable uplift on costs is at the discretion of the court/tribunal, as only one (persuasive) factor amongst various others, when it considers how costs should be apportioned between the parties.

Formal Settlement in English Court Proceedings

In litigation before the English courts, parties may make a Part 36 offer under the Civil Procedure Rules (“Part 36”). Part 36 offers provide automatic and predictable costs consequences as long as settlement offers meet certain preconditions, including that they:

• are a genuine offer to settle (as opposed to merely a tactical step to attract Part 36 costs consequences);
• comply strictly with Part 36, including stating that they are made under Part 36; and
• remain open for at least 21 days, within which the defendant will be liable for the claimant’s costs if the offer is accepted (unless made less than 21 days before trial).

The consequences of rejecting a Part 36 offer and failing to obtain a more advantageous judgment depends on whether it was made by the claimant or defendant. By way of example, if made by the claimant, it includes:

• costs awarded from the date of expiry of the offer on the higher ‘indemnity basis’ (as opposed to the ‘standard basis’);
• enhanced interest (up to 10% above the base rate); and
• an uplift on damages (capped at GBP 75,000 – or 10% of costs if a non-monetary claim).

Part 36 v Calderbank Offers – A Comparison

The Singapore Position

Singapore law similarly recognises WP correspondence and WP/WPSATC settlement offers.

Its courts also have an equivalent to the English courts’ Part 36 offer; the relevant provision being Order 5 of the Rules of Court 2021, which stipulates that a party to any proceedings has the duty to consider amicable resolution of the dispute before the commencement and during the course of any action.

Whilst not identical to Part 36, particularly as the Singapore court is afforded discretion in determining costs where an offer is made and the recipient fails to better it (rather than being bound by firm rules), Order 5 offers serve a similar purpose of both encouraging settlement and managing predictable costs outcomes.

The Thai Position

In Vietnam, the courts do not recognise WP offers of any kind. This means that there is nothing stopping the recipient from disclosing the existence and nature of the settlement offer to the court, or any other third party. Accordingly, we are aware of instances where WP offers have been placed before the courts (sometimes to the surprise of the issuer).

Moreover, the parties’ attempts to resolve cases amicably do not affect the allocation of costs under Vietnamese civil procedure law. Instead, costs allocation follows fixed rules under the Civil Procedure Code.

Accordingly, in relation to court fees and certain other procedural expenses (such as costs for judicial expertise or on-site inspection), unless otherwise agreed by the parties, the principle of ‘costs follow the event’ applies. With respect to lawyers’ fees and translation fees, these are generally not recoverable unless otherwise agreed by the parties. Judges will allocate all relevant fees in their judgments or decisions, along with their determination on the merits of the case.

Vietnamese Alternative Dispute Resolution

Whilst Vietnam lacks costs-related incentives to encourage parties to resolve disputes amicably, there is a scheme encouraging mediation. Pursuant to the 2020 Law on Mediation and Dialogue, when a claimant commences civil proceedings, court-annexed mediation is automatically applied as a preliminary step before litigation. However, either party may choose to opt out of this procedure and, in our experience, most parties do.

Notwithstanding the above, in Vietnam-seated arbitration, the extent to which WP principles/WPSATC offers and the successful party’s ensuing entitlement to the recovery of its legal costs would be recognised would depend heavily on the constitution and procedural orders of the Tribunal. There is no legal principle addressing this matter.

In practice, it is possible for tribunals in Vietnam-seated arbitrations to take into account WPSATC offers – as advised above in relation to Thailand-seated arbitrations, if parties wish to increase the likelihood that their settlement attempts will be formally recognised, they may wish to adopt arbitral rules which clearly provide for this.

The Philippine Position

Whilst the Philippines recognises WP offers, Philippine law is not identical to English and Singapore law.

The longstanding rule in the Philippines is that an offer to compromise is not an admission of liability and is inadmissible as evidence against the party offering to compromise in civil cases. In 2019, the Philippine Supreme Court introduced a new sentence in the Revised Rules of Evidence to address settlement negotiations. “Neither is evidence of conduct nor statements made in compromise negotiations admissible, except evidence otherwise discoverable or offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” (Rule 130, Section 28, 1st Paragraph, Second Sentence of the Revised Rules of Evidence (effective 1 May 2020)).

Accordingly, not only the fact of an offer to compromise, but also anything said or done in the course of the settlement negotiations is generally inadmissible to prove liability. However, there are two exceptions: (i) if the evidence Is independently obtainable; or (ii) if it is offered for a different purpose.

At the time of publication, there has been no publicly available Philippine Supreme Court ruling that has interpreted the new sentence.

In relation to WPSATC offers, since each party bears their own legal costs in Philippine litigation, there are no cost consequences for rejecting a settlement offer in civil court proceedings. For Philippine-seated arbitrations and, similar to the Thailand and Vietnam, tribunals have discretion to decide on costs and may take into consideration WPSATC offers when deciding costs. However, we are not aware of any publicly available awards addressing settlement offers in Philippine-seated arbitrations.

The Value of Settlement Offers – A Case In Point

As an example of the use of settlement offers, when wielded correctly and recognised by the relevant court/tribunal – in a recent SIAC arbitration, we issued a Calderbank offer on behalf of our claimant client to the respondent at an early stage of the proceedings, to significant effect:

• the arbitral proceedings were lengthy, spanning 18 months, requiring factual and expert evidence and going to a five-day oral hearing;
• the respondent recipient never accepted the Calderbank offer, which remained open throughout the proceedings;
• the Tribunal called for submissions on costs once it had made its decision on the dispute (in our client’s favour), following the hearing;
• our client disclosed the Calderbank offer to the tribunal – who found that the recipient respondent had failed to better it by a significant margin; and
• the respondent was deemed by the tribunal to have acted unreasonably in its rejection of the Calderbank offer.

The end result was that our client was awarded a much higher proportion of its costs (compared to if it had never made the Calderbank offer), commencing from 14 days following the issuance of the offer. This represented a significant uplift on its costs recovery for our client.