This Practice Note identifies the different means by which a settlement can be documented, namely by exchange of correspondence, contract, deed, Tomlin order or consent order. The various advantages and disadvantages of these methods are discussed, including the sometimes problematic issue of determining the point at which the settlement offer is accepted, as well as the related issue of the basis on which the parties are negotiating (for example, on a ‘Without prejudice save as to costs’ basis and/or ‘Subject to contract’). It also sets out the execution requirements when settling using contracts and deeds, and provides sample counterparts wording.

For guidance on making an offer to settle, see Practice Note: Settling Disputes—settlement offers (Calderbank, WPSAC and Part 36).

For guidance on drafting the terms of a settlement agreement (whether executed as a contract or a deed), see Practice Note: Settling disputes—drafting the settlement agreement. That Practice Note also deals with the issue of the disposal of the proceedings themselves where there are court proceedings in progress at the time of the settlement.

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