In two recent cases, the courts have rejected attempts to introduce evidence of without prejudice (WP) communications. The decisions emphasise the important public policy role of the WP rule in encouraging settlement by ensuring parties can negotiate freely, without fear… Read more

The Court of Appeal has recently considered the rarely invoked "unambiguous impropriety" exception to without prejudice ("WP") privilege: Ferster v Ferster [2016] EWCA Civ 717. Upholding the decision of Rose J at first instance, the Court of Appeal found that… Read more

The Supreme Court has held unanimously that, where a party seeks to set aside a settlement agreement on the grounds that it was induced to enter into it by its opponent's fraudulent misrepresentations, it will not necessarily be a bar… Read more

A key issue for parties negotiating any settlement is the extent of the releases being given by one or both parties, including whether they should extend to claims the parties are not aware of at the time of the settlement. There is an… Read more

In two recent decisions, the courts have refused to treat offers which fell outside the Part 36 regime as favourably as a Part 36 offer. In Patience v Tanner [2016] EWCA Civ 158 the defendant's offer was not a Part… Read more

The Court of Appeal has refused to set aside a settlement agreement on the basis of new evidence indicating that the claimant's case had been fraudulently exaggerated:  Hayward v Zurich Insurance Co plc [2015] EWCA Civ 327. Settlement agreements may… Read more

The High Court has struck out claims for phone hacking on the basis that they were compromised by settlement agreements previously agreed between the claimants and the defendant newspaper group: Brazier v News Group Newspapers Limited & Leslie v News… Read more

The High Court has held that a binding settlement was agreed in an exchange of e-mails between the parties' solicitors despite their subsequent failure to agree formal terms: Bieber v Teathers Limited [2014] EWHC 4205 (Ch). The decision acts as a reminder of the importance… Read more

In circumstances where two claimants had settled their claims against the defendant on a "no costs" basis and a third claimant had continued to trial and lost, the Court of Appeal held that the settling claimants should contribute to the defendant's… Read more

The Court of Appeal has recently held that certain correspondence marked "without prejudice" was admissible in evidence despite this label, because there was no dispute between the parties at the time of the correspondence and the parties had not agreed… Read more

The Court of Appeal has held that, where a claim was settled by acceptance of a Part 36 offer, the defendant's two-year limitation period for bringing a contribution claim ran from the date of acceptance, not from the date of… Read more

A recent Court of Appeal decision provides useful guidance on how the court will determine the effect of a "without prejudice save as to costs" (or Calderbank) offer in a non-money claim: Coward v Phaestos Limited and others [2014] EWCA… Read more

The High Court has held that a draft Complaint in New York proceedings sent to the other party marked as a "preliminary draft" and "for settlement purposes only" was protected by without prejudice privilege in proceedings before the English court… Read more

The Court of Appeal has upheld a decision striking out a misrepresentation claim on the basis that (i) the cause of action against the present defendants had been released as a result of a previous settlement with others who were… Read more

The Court of Appeal overturned an order granting the claimants permission to use, in intended Swiss proceedings, certain documents that had been disclosed by the defendants, where the proceedings had been settled before trial, the documents had not been read… Read more

A recent High Court decision illustrates the importance of stating clearly that a settlement offer is intended to be subject to contract, where that is the case. Here the court found that the defendant's letter setting out terms of settlement,… Read more

The Court of Appeal has considered the grounds on which a Tomlin order, a form of consent order commonly used to record agreed terms of settlement, could be set aside: Watson v Sadiq [2013] EWCA Civ 822. The claimant contended that… Read more

On 21 March Murray Rosen QC, head of Herbert Smith's Advocacy Unit, together with support lawyers Pamela Kiesselbach and David Phillips, presented a webinar entitled 'Litigation from a client's perspective: top tips from the advocacy unit'. Murray, Pamela and David… Read more

On Wednesday 21 March (12:45 to 1:45 UK time) Murray Rosen QC, David Phillips and Pamela Kiesselbach will present a live audio webinar which will provide a practical overview providing tips for clients and in-house counsel on how to approach and conduct litigation, looking at… Read more

A recent Court of Appeal decision clarifies that the court has the power to hand down judgment in a case that has been fully argued, even if the parties have settled their dispute and asked that judgment not be given:… Read more

In a recent case the High Court has withheld publication of its draft judgment, at the request of the parties, in light of the subsequent settlement of their dispute: Renaissance Capital Ltd v ENRC Africa Holdings Ltd (unreported, 7 April… Read more

A recent High Court decision highlights important issues for the execution of settlement deeds and provides a useful restatement of the extent of the disclosure obligations of parties to settlement negotiations: Silver Queen Maritime Ltd v Persia Petroleum Services Plc… Read more

A recent High Court decision has important practical implications for the drafting and filing of Tomlin orders, which are commonly used to record agreed terms of settlement: ABC Ltd v Y [2010] EWHC 3176 (Ch). The judgment also helpfully reviews… Read more

The recent High Court judgments in the case of Cadogan Petroleum Plc and others v Mark Tolley and others [2010] EWHC 1107 and [2009] EWHC 3291 give a good illustration of when a settlement agreement with one defendant will be… Read more

Failure to do so may result in the agreement being incomplete for uncertainty: Western Broadcasting Services v Seaga [2007] UKPC 19 and Brown v Rice and others [2007] EWHC 625 (Ch). ... Read more

Otherwise there is a risk that the court will find they were intended to be on an open basis: English & American Insurance Co Ltd v Axa Re SA [2006] EWHC 3323 (Comm). ... Read more