Showing a willingness to settle doesn't make you look weak. It's all about how it is approached, which is the skill of the litigator (your solicitor).
The Court encourages parties to attempt to settle. It is even able to pause a claim to require the parties to try mediation (a formal process, using an independent third party who tries to broker a deal while each party sits separately with their legal team). If a claim doesn't settle, the Court has the power to punish a party who failed to take active steps to attempt settlement by denying them their costs or ordering them to pay at least some of the other party's costs.
Regardless of the Court's powers, it is always sensible to try to settle. Done right, offering to settle (or attempt to) won't make you look weak. The benefits of settling are numerous:
- the outcome is certain;
- you don't have to give evidence at a trial;
- you save significant costs;
- you maximise a recovery or shorten a period during which you're suffering further loss (in a money claim);
- you shorten the period you are suffering nuisance, loss of a right or other infringement you want to stop;
- you achieve a realistic objective, rather than losing everything (because there will only be one 'winner' and one 'loser');
- you can achieve an outcome the Court cannot order - e.g. land transfers which the Court has no power to order;
- you can have a confidentiality clause in the settlement, so nothing becomes public (outcomes at trial are a matter of public record, so parties are allowed to tell other people what happened).
All correspondence relating to settlement should be marked 'without prejudice'. That correspondence doesn't get seen by the Court during the trial, so the Court will not know what attempts have been made to settle until it comes time to deal with costs. At that stage correspondence that has been marked 'without prejudice save as to costs' can be shown to the Court to assist the decision on who pays the costs.
The term 'without prejudice' is used so that it is clear that the contents of the letter discuss settlement and shouldn't be taken as an alteration to your position in the claim. In this correspondence parties may make admissions or concessions, or agree, for the purposes of settlement, that they owe money. Without prejudice correspondence does not undermine your position in the claim, so you can still robustly argue your position to the Court (as long as you aren't misleading it).
You may also make concessions at a mediation, as the entire meeting is treated as 'without prejudice', so the Court will not know what happened there (subject to some rights to disclose limited information to the Court in certain circumstances).
Settling doesn't have to mean selling yourself short; it should be a commercially sound decision. Your lawyer should be skilled enough to negotiate assertively and to advise you on the reasonableness of an offer (and any counteroffer). They should also be able to give a view as to whether they think you should accept (or make) an offer, based on the prospects of success or likely outcome.
