Settling a claim
Court proceedings and hearings
It may be necessary to issue court proceedings if:
- liability is denied by the Defendant
- it is not possible to reach agreement on the value of the claim
- the claim cannot be concluded before the end of the limitation period
- it is thought that the discipline of the timetable set by the Court will assist in progressing the claim to a conclusion.
Most cases are resolved without resort to formal court proceedings. Even where proceedings are issued only a few cases get as far as a final court hearing. Most cases that are concluded with a payment of damages are settled by negotiation rather than at a contested court hearing.
The approach taken to settlement negotiations will vary considerably from case to case.
In some cases the liability issues may be fairly straightforward and the Defendant may make an early admission of. In those cases any subsequent settlement negotiations will only need to focus on the relative strengths of the parties’ arguments regarding the value of the claim. In other cases liability may be strongly contested and any settlement negotiations will need to address the relative strengths of the parties’ arguments on liability as well as the value of the claim.
The most likely point at which settlement negotiations might lead to a settlement is when both parties have the bulk of the information on which to base their assessment of the strengths and weaknesses of their case. This may be when:
- the parties have disclosed any relevant documents
- the parties have exchanged any witness statements
- the parties have exchanged any expert reports
- the parties’ experts have had an opportunity to discuss their evidence.
However tactical offers may be made at any stage if one party believes they can secure an advantage by making an earlier offer.
Settlement negotiations may be pursued by a number of means including:
- exchange of correspondence
- telephone discussion
- a “round table” meeting involving the parties and their representatives.
The approach taken will depend on the particular features of the case.
One of the reasons why most cases are concluded by negotiation rather than at a contested court hearing is that the parties are able to put forward tactical offers that can place their opponent at significant risk on costs. These are known as Part 36 offers.
Part 36 offers
A Part 36 offer is a settlement offer that complies with Part 36 Civil Procedure Rules 1998 (CPR 1998).
The government is in the process of introducing a range of changes that will have a profound impact on the funding of personal injury claims. The changes will generally create a less favourable environment for injured parties pursuing claims for compensation. The main impact of these changes will take effect in April 2013.
The changes being introduced will have an impact on Part 36 offers.