Introduction Settlement is a central feature of clinical negligence litigation. The timing and structure of any offer may significantly affect both outcome and costs. CPR 1.3 and CPR 1.4 require parties to assist the court in furthering the overriding objective, including through appropriate use of alternative dispute resolution (ADR). The court’s case management powers include encouraging or ordering ADR. See Practice Note: Case management of civil claims under the CPR—Case management and the overriding objective (CPR 1). Even if an offer does not result in settlement, it may still provide significant protection on costs. This Practice Note primarily focuses on settlement using Part 36 of the CPR. For further guidance, see also Practice Note: Part 36 offers in PI and clinical negligence claims. Settlement may also be pursued through non-Part 36 offers or ADR. See: • Settlement and settling disputes—overview • ADR and dispute resolution clauses—overview When to settle The possibility of settlement should be reviewed throughout the life of the claim, including by reference to the following considerations: Substance—are you in a

Construction analysis: In an application to set aside a judgment entered following breach of a settlement agreement, the court found that it was arguable that the settlement agreement had been obtained by fraud. This was on the basis that the defendants, who were responsible for project management, knowingly or recklessly allowed a practical completion certificate (PCC) to be issued in circumstances where it should not have been.

Employment analysis: Future claims can be waived in a settlement agreement so long as appropriately clear language is used. This is the case irrespective of whether it is a ‘clean break’ end of employment situation or the parties remain in a continuing employment relationship, according to the EAT.

The parties may wish to agree a resolution of the issues raised in the appeal or withdraw the appeal prior to the full hearing. The Practice Direction sets out the procedure to be followed where the appellant wishes to withdraw the appeal or the parties agree that the appeal should be allowed by consent. Alternative dispute resolution The Employment Appeal Tribunal (EAT) encourages alternative dispute resolution, and, in particular, the involvement of an Acas officer in appeals which may be amenable to conciliation. The EAT's approach to conciliation is in line with: • its power to power to take steps it considers appropriate to enable parties to avail themselves of any opportunities for conciliation whether by adjourning any proceedings or otherwise, and • furthering the overriding objective, which includes: ◦ ensuring cases are dealt with expeditiously and fairly, and ◦ saving expense In all cases the parties should, and when so directed must, consider alternative dispute resolution of their appeals. The Registrar or a Judge may at any stage: • make

This Practice Note provides an overview of the settlement of employment tribunal proceedings. It examines the strategic considerations and timing of settlement, and outlines the statutory and procedural frameworks governing the various mechanisms for resolving claims. The Note addresses withdrawal and dismissal (in whole or in part), respondent applications for dismissal and related challenges, Acas early conciliation, the impact of contracting-out provisions, and the use of consent orders, COT3 agreements and statutory settlement agreements. In this Practice Note, where appropriate, references to ‘claimant’ include a respondent advancing a counterclaim and references to ‘respondent’ include a claimant replying to such a counterclaim. The parties involved in an employment-related dispute will often be keen to avoid the cost, uncertainty and time involved in either initiating (or responding to) an employment tribunal claim or, where a claim has been submitted, proceeding to a full tribunal hearing. Attempts to negotiate a settlement of the claim or potential claim may be made as soon as the dispute arises, before the submission of the claim

The Home Office’s caseworker guidance on the applications for settlement by those on the family and private life routes has been revised to incorporate changes made by Statement of Changes in Immigration Rules HC 246, which came into force on 31 January 2024. It also contains a number of other changes and clarifications.

This Practice Note considers the costs position where parties have reached a settlement as to the underlying substantive dispute but have been unable to reach an agreement as to costs. It considers the position where settlement occurs prior to commencement of proceedings and there is no agreement as to costs. If certain criteria are met then a costs-only Part 8 claim may be commenced to recover costs. If settlement occurs following the commencement of proceedings, a Part 8 application is not available. The Practice Note explores how parties can request that the court make a costs order where the parties have not reached an agreement about costs and whether the court may require a full trial to resolve the costs dispute. This Practice Note also considers the position where parties settle an application but with no agreement about costs recovery. This Practice Note does not consider the costs position when dealing with proceedings in which there has been a Part 36 offer or a Calderbank offer. For guidance on the costs consequences of such offers, see Practice

This Practice Note discusses the factors involved in settling a claim at or immediately after a mediation as distinct from other times that settlement may be achieved. It distinguishes a situation where all aspects in contention are resolved at the mediation with one where many issues are agreed but some are not, leaving room for further negotiation if desired. No distinction is made between settlements entered into after the commencement of litigation or before the issue of a claim form, save for the additional need to conclude the litigation after settlement has occurred. Can compulsory mediation be ordered? Judicial and other opinions have varied on whether a court had the ability compulsorily to require parties to attempt to settle a dispute via non-court methods since Halsey v Milton Keynes General NHS Trust. The Court of Appeal said, obiter in that case, that the court did not have such power because ‘to oblige truly unwilling parties to refer their dispute to mediation would be to impose an unacceptable obstruction on their right of access to the court’.

Claims can be settled at any point in the litigation process, including pre-action. Practitioners should regularly review the possibility of settlement from the outset. Early and appropriate settlement by agreement is a worthy goal and one that you should keep under regular review. Treat Part 36 as an important tool due to its mind-focusing costs implications. Ask yourself the following questions:

Any settlement of a dispute should be reflected in an enforceable written agreement that is signed by the parties and that accurately reflects what they have agreed. This will minimise the risk of subsequent misunderstanding and enable a party to bring proceedings in the event of non-compliance by the other party. The agreement is a form of contract and therefore the law of contract applies to its drafting and interpretation. Like all contracts, the agreement should be drafted clearly. This Checklist looks at the key issues which have particular relevance to construction disputes. For sample clauses and a more in-depth consideration of the issues (in the drafting notes), see Precedent: Settlement agreement for construction dispute (long form). Ensure that settlement negotiations are conducted on a without prejudice basis Conduct settlement negotiations expressly on a 'without prejudice' basis so as to ensure that, if unsuccessful, any proposed concessions cannot be referred to by the other party in any legal proceedings. Do not rely on the use of expressions such as 'confidential' or 'off the record' because they do not provide the

This Practice Note addresses the settlement of claims between one or more claimants and at least two defendants. This Practice Note does not consider situations where the settlement is the result of a Part 36 offer being accepted without a settlement agreement following. Problems with partial settlements The most straightforward situation in which to settle a claim is where one party makes a single claim against one party with no counterclaim. The parties agree terms and enter into a settlement agreement in which the claimant gives up its claim and releases the other party from liability. If there is a counterclaim by a defendant, or more than one party is potentially liable to the claimant, this complicates the position. The ideal settlement situation is to be able to resolve a dispute, clear a liability and end any related litigation completely. That is not always possible so a partial settlement may be better than none, leaving remaining parties to defend their positions. But a partial settlement creates legal, procedural and practical issues, requiring

This Practice Note considers the key issues when drafting a settlement agreement, including correct identification of the parties (including any relevant third parties), setting out the parties’ obligations with sufficient certainty and compulsion (including time of the essence and ‘endeavours’ provisions), drafting the release (the ‘full and final settlement’ estoppel), the inclusion of relevant boilerplate provisions and execution formalities. For guidance on making a settlement offer and determining how to document your settlement, see Practice Notes: • Settling disputes—settlement offers (Calderbank, WPSAC and Part 36) • Settling disputes—how to document a settlement • Settling at a mediation For Precedent draft settlement agreements, see: • Draft Settlement agreement—pre-action settlement • Draft Settlement agreement—for settling disputes post-commencement of proceedings For guidance on resolving disputes resulting from a settlement agreement, see Practice Note: Resolving disputes concerning settlement agreements. Key requirements—drafting the settlement contract As with any contract, the key elements to be considered are: • consideration (unless executing as a deed)—see: Drafting settlement agreements—consideration below • parties to the agreement/deed—see: Drafting settlement agreements—parties and authority below • the effective