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Can we settle? - Coggle Diagram

- - - - however, privilege belongs to the parties, not the mediator. Privilege may be waived by parties but not by the mediator. The mediator cannot resist resist giving evidence on negotiations if it has been waived by all parties. Confidentiality cannot be waived without mediator's agreement, prejudice can be, without the need to obtain mediator agreement
  - - - claims less than £10k will be referred to a free and confidential small claims mediation service operated by HMCTS. Referral only made by court if parties indicate on DQ they agree (CPR 26.6). Exceptions: road traffic and PI
- - - - Offer usually made through a letter or their is a prescribed form N242A which if completed properly, would comply with the rules
  - - - Claim will be stayed and not continue to trial CPR 36.14(1)
      - Settlement sum- for any offer which includes an offer to pay/accept a single sum of money, D has 14 days from acceptance to pay the settlement amount unless agreed otherwise in writing (36.14(6)), failing which the C can enter judgment against D (36.14(7))
      - Costs- cost consequences depend on when offer was accepted
        
        If accepted before expiry of relevant period, C entitled to its costs of proceedings up to date the notice of acceptance served on offeror CPR 36.13(1). C has essentially 'won' no matter who made the offer
        
        If accepted outside the relevant period: CPR 36.13(4): The court will determine liability for costs unless the parties agree them but the court must, unless it considers unjust to do so, order C be awarded costs up to date the relevant period expired, the offeree to pay the offeror's costs for the period from expiry of relevant period to date of acceptance
        
        Special rules if offer made less than 21 days before trial: If parties do not agree liability for costs, court must determine liability 36.13(4)
        
        Special rules for Part 36 offers relating to part of a claim CPR 36.5(1)(d)
        
        If at acceptance, C abandons remainder of the claim, C only entitled to costs relating to part of the claim contained in the offer unless court orders otherwise CPR 36.13(2)
        
        If at time of acceptance, claimant does not abandon remainder of the claim, liability for costs will be determined by the court, unless parties can reach an agreement about liability CPR 36.13(4)
    - - if D makes the original offer
        
        Consider a) trigger- does the failure to accept D's offer trigger consequences b) what are the consequences
        
        Trigger- A claimant fails to obtain a judgment more advantageous than D's part 366 offer CPR 36.17(1)(a). This means there will be consequences for C if the judgment offers less money than D's Part 36 offer
        
        In these circumstances, unless it is unjust to do so, court must order a) C pays D's costs from date the relevant period expired b) interest on those costs CPR 36.17(3). Payment of costs before the relevant period expires is at court discretion
        
        If trigger is not met, Part 36 offer refusal has no consequence
      - if C makes the original offer
        
        Consider a) trigger- does the failure to accept C's offer trigger any consequences b) what are the consequences
        
        Trigger- Judgment against D is at least as advantageous to C as proposals contained in C's Part 36 offer. If D could have done just as well by accepting the offer then a penalty will be imposed on D for not accepting
        
        Unless unjust to do so, court must order: a) interest on the award at rate not exceeding 10% b) costs from the end of the relevant period are to be assessed on indemnity basis c) interest on those costs are are at a rate not exceeding 10% above base rate d) an additional amount based on percentage of the award (up to 10% and over 5%) total capped at 75k CPR 36.17(4)
        
        If no trigger met, Part 36 offer refusal has no effect
- - - - guidance accompanying precedent H (costs budget) requires inclusion of negotiation and advising on settlement, DQ requires legal representatives to confirm they have explained need to settle and possible sanctions and option to stay for a settlement, CMC the court is likely to want to know ADR steps taken and court can give directions to instruct this. court required to manage cases by encouraging ADR if appropriate CPR 1.4(2)(e)
    - - court considers conduct of parties when making a costs order CPR 44.2(4) this includes conduct before proceedings CPR 44.2(5), mere failure to suggest ADR does not matter
      - court may impose cost sanctions if ADR not tried. burden of proof on unsuccessful party to show court why it should depart from general rule of costs to be paid by unsuccessful party. court will consider merits, nature of dispute, settlement methods, if ADR costs would be disproportionately high, if ADR had prospect for success and delay in setting up ADR would have been prejudicial
- - - - relies on usual contractual principles. Discussions can be subject to contract which means they are not binding until formally written
  - - - D/D's insurers have duty to apply for CRU certificate and is required to pay CRU benefits shown on that certificate within 14 days of making compensation payment. If D fails to get cert, CRU can still seek to recover benefits from D
        
        D can deduct from parts of C's claim for damages, any deductable benefits accrued up to date of final compensation payment. Any claims for pain, suffering, amenity and future losses are ring fences and no deductions can be made against them