Settling disputes—what, when and why settle?
Produced in partnership with Helen Swaffield of Contract Law Chambers
Settling disputes—what, when and why settle?

The following Dispute Resolution practice note produced in partnership with Helen Swaffield of Contract Law Chambers provides comprehensive and up to date legal information covering:

  • Settling disputes—what, when and why settle?
  • What is settlement?
  • Why settle your dispute?
  • When to settle your dispute?
  • Encouraging settlement—the role of the CPR
  • Costs sanctions for unreasonable refusal to mediate
  • Settlement agreements as consent orders
  • Civil Justice Council review on improving the use of ADR

This Practice Note considers when and why achieving a settlement of the dispute should form a part of the overall litigation strategy of conducting your client’s case.

For guidance on who should be involved in settlement discussions, what form the settlement should take, how it should be documented and how it can be enforced, see the further guidance in this subtopic, including Practice Notes:

  1. Settling disputes—who, confidentiality and subject to contract

  2. Settling disputes—settlement offers (Calderbank, WPSAC and Part 36)

  3. Settling disputes—how to document a settlement

  4. Settling disputes—drafting the settlement agreement

and related content.

What is settlement?

A settlement is the result of an agreement between the parties to the disputes to compromise and/or end the litigation. It arises from an offer by one party that is accepted by the other or others.

It is different from the discontinuance of a claim using the formal court procedure under CPR 38 where a litigating party wishes to discontinue their statement of case usually with the consequence of costs against a discontinuing claimant or judgment and costs against a discontinuing defendant. For guidance on discontinuing claims, see Practice Note: Discontinuance of a claim.

The process of a settlement usually arises from engaging in ‘without prejudice (save as to costs)’ negotiations. There are three key elements inherent in the settlement process which must be considered:

  1. the use of the ‘without prejudice’ privilege (including

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