Posts tagged: trial adjourn

The impending trial and mediation

Settlement is often left too late.  Lawyers can always justify waiting just that little bit longer to see if something comes out in disclosure or wait to see what the witnesses or experts will say.  This can lead to examples of cases literally settling at the door of the court and often the delay does not enable a cheaper settlement.  I had an experience earlier this year of a party refusing to mediate pre-action and then paying, in effect, 100% of the amount claimed with my client foregoing only some of the interest.  Substantially better terms would have been available months earlier but my opponent, having left it so late, had no costs protection and faced the prospect of paying for the trial costs when we were acting on a CFA had no negotiating position.

 In a salutory warning to the profession Coulson J said in Elliott Group v GECC [2010] that: “I am not sure that it could ever be a good ground for an adjournment of a fixed date for trial to say that the proposed adjournment would allow the parties an opportunity to settle the case … once started, court proceedings have to be brought to a conclusion … Every day is a new opportunity for the parties involved in civil litigation to resolve their differences …”  

The clear message is to settle and settle early.

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