Making an Offer to Settle is Not a Sign of Weakness
- AuthorLaura Simpson
Over three million people are injured in accidents each year - at home, in their cars, at work, or outdoors. In many cases, someone else is at fault and the accident victims have a right to compensation.
There are several ways of getting compensation for a personal injury but if you decide to take legal action, it is important to keep settlement in mind at all stages of the proceedings.
Making an offer to settle your claim is not a sign of weakness, but rather a legitimate means of putting the other side under pressure to settle. If you want to settle, there are different ways of doing this – all of which have their advantages and disadvantages.
Open letters of settlement. This is the equivalent of showing your hand in a game of cards. Making an open offer of settlement means that the full details of the offer may be referred to in court. Such an offer may well reveal a party's tactics and may be a useful tool if one party is being particularly unreasonable in settlement negotiations. This form of settlement is less common in practice.
Without prejudice offers. The offer cannot be disclosed at all to the court. A ‘without prejudice’ offer is rarely used in practice as it would not attract any penalties if refused. Once a party has made a ‘without prejudice’ offer, the privilege will attach not only to the offer, but also to the response, whatever this may be; whether it includes a counter offer or not, whether it’s a request for information or whether it is simply an outright rejection without any further attempt to settle.
A Calderbank offer. This is not an 'open' offer to settle, but, because of the words 'save as to costs', it is admissible on the question of costs. As such, the existence and terms of a Calderbank offer will not be seen by the court except in the context of who pays the legal costs between the parties once the substantive issues have been determined. The court will consider the existence of any Calderbank offer drawn to its attention for the purposes of exercising its general discretion as to who pays the costs.
Part 36 offer. The Civil Procedure Rules (CPR), which govern the conduct of litigation, encourage settlement of disputes in several ways. A party can make an offer on any issue, such as liability, as well as an offer to settle the claim.
One of the most common means is a Part 36 offer which is an offer by a claimant or a defendant to settle the claim that complies with the requirements in Part 36 of the CPR.
When a Part 36 offer is not accepted, the CPR provide costs consequences to the party to whom the offer was made and then fails to achieve a better result at trial. A Part 36 offer is an important tactical step in litigation.
Benefits of settling out of court
Ultimately, it is best to try and settle a case without going before a judge. Accepting an offer gives you certainty of the outcome. Settlement is the conclusion of the whole case including who pays the legal costs of the case.
Your solicitor will advise you and take your instructions upon any offer which is made by the defendant or before making any offer. Some people say never to accept the first offer as it will be too low, but that is not always the case and if you instruct a local firm of solicitors such as Andrew & Co, you can discuss any offers in person with your solicitor.
It is worth noting that for low value claims (between £1,000 and £25,000) a claims portal has been set up to help keep costs down. The Claims Portal acts as a go-between for claimants and defendants. Whilst a claim is going through ‘The Portal Procedure’, the negotiation process is different to what is set out above.