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Obstacles to early settlement

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Legal matters

Of the 40,000-odd writs issued in the Queen's Bench division of the High Court every year, only 2000 or so are set down for trial. Most of those actions will settle before judgment. The common perception that most settle at, or shortly before, trial is not misplaced. The added inference that much expensive preparation is thereby wasted, however, may be. Bearing in mind that civil disputes are resolved according to the legal rights of the parties, and that evidence is required to establish the rights and remedies claimed, what are the obstacles to early settlement?

Before any dispute can be resolved it needs to be defined. Although they seem to be rather non-pc these days, the traditional function of pleadings is not to provide the likes of me with lots to do into the small hours, but to define the matters in issue. Those advising the parties then need to establish the background. They prefer to rely upon documents which, as a rule, do not change their mind, lose their memory or go back to Ireland.

The process of discovery has the advantage that you can see the other side's documents, but it is notoriously time-consuming and expensive. Where the dispute throws up technical issues, an expert's opinion will be required. Where factual matters are disputed, details need to be obtained from those involved at the time. It is not until this process of gathering together the evidence relating to the disputed matters is firmly under way that the parties can be advised as to the strengths of their own cases. Only when the other side's evidence has been disclosed can the relative merits be assessed. The parties are likely to be nearer the hearing date than the date the writ was issued before they reach this stage.

By this time the litigation has often gained a life of its own. The people for whom it was originally important may have been promoted, decruited (as they say) or have generally lost interest. The person who may ultimately have to write the cheque may know little about it. The suggestion of settlement may be seen as a loss of face or confidence, or to be depriving a righteous party of their just deserts or a wronged party of their day in court.

Against this background, a rapidly approaching trial date concentrates the mind wonderfully. The likely cost of any trial is truly daunting and the extent of the disruption to witnesses' schedules and workload becomes apparent. The representation team starts to subject the accumulated evidence - both parties' documents, experts' reports and witness statements - to minute forensic scrutiny.

They ask themselves, 'What should have happened? What actually happened? What went wrong and why?' and, perhaps most importantly, 'What is the judge going to make of this?' It is only when this detailed task is carried out by those who will present the case at trial, with the needs of the judge well in mind, that definitive advice can be given as to the prospects of the parties establishing their legal rights and obtaining the remedies they claim.

When both parties are well advised, the route to settlement is much clearer. Of course there are other obstacles to settlement: too much emotion on the part of the parties (surprisingly common even with building disputes), or ego (less surprising), intransigence, an inability to make decisions (as with large committee-led bodies), too much money at stake, or sheer enjoyment of the whole affair (sadly on the decline these days). In the main, common sense prevails and a deal is done.

But for as long as the parties require remedies to be based on their legal rights, it is unlikely that it could have been done much sooner.

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