10 - Trials and settlements

Summary

Settlement is so pervasive that is has been argued that in civil litigation those cases that result in contested hearings are to be considered as deviant… The conduct of negotiations and the path to settlement are largely dictated by court procedures. There is no separate settlement procedure. Settlement is achieved by preparing for trial – going through the ritualistic procedures determined appropriate for adversarial contest in open court. Parties who want peace and want it on good terms have no alternative … but to prepare for war.

The importance of settlements

The vast majority of tort claims are settled by negotiation and agreement between the claimant and the defendant's liability insurer, or, occasionally, the defendant personally, usually through the agency of solicitors on both sides. This process has been memorably called ‘litigotiation’. The Pearson Commission estimated from its various surveys that 86% of cases are settled without the commencement of legal proceedings (i.e. a claim form); 11% are settled after the commencement of proceedings but before the case is set down for trial; 2% are settled after setting down; and 1% are settled at the door of the court or during the trial, or are actually disposed of by trial. Many other surveys and studies confirm the general pattern of these figures.

On the basis of these facts, the tort system could be regarded as an administrative process handled by insurance adjustors and solicitors incorporating a ‘right of appeal’ to a court of law.