Written by Settlement is not a sign of weakness. In civil claims, it is often the most practical way to control risk, reduce cost and end uncertainty. For litigants in person, the key is to understand the difference between informal negotiation, mediation, ordinary offers and formal Part 36 offers before making or accepting terms.
Publication snapshot
- This guide explains settlement options for litigants in person involved in civil claims in England and Wales.
- It covers negotiation, mediation, without-prejudice communications, Part 36 offers, Tomlin orders and practical settlement risks.
- It highlights that Part 36 is a technical regime and should not be used casually, especially by litigants in person.
Why settlement matters
Civil litigation is uncertain. Even a strong claim can involve evidential problems, legal argument, delay, hearing fees, preparation time, enforcement risk and potential costs exposure. Settlement allows parties to resolve the dispute without asking the court to decide every issue.
The court expects parties to think about settlement and alternative dispute resolution. That does not mean a party must accept a poor offer. It does mean that unreasonable refusal to engage constructively may later matter, particularly when the court considers costs.
For a litigant in person, settlement can also reduce the personal pressure of proceedings. A practical compromise may be better than a technically perfect claim that takes months or years to reach judgment and still has to be enforced.
The key distinction
Settlement is a risk-management decision. It should be based on evidence, likely outcome, costs, delay, enforcement prospects and the value of finality — not simply on anger, principle or exhaustion.
Main routes to settlement
Settlement can happen before a claim is issued, after proceedings have started, shortly before a hearing, during a hearing break, or after judgment where payment terms or enforcement are still disputed.
Direct negotiation
The parties communicate directly to explore whether the claim can be resolved. This may be suitable where the issues are clear and the parties can communicate safely and proportionately.
Mediation
A neutral mediator helps the parties explore settlement. The mediator does not decide the case. Mediation can be especially useful where both sides need a confidential process and a practical outcome.
Ordinary written offer
A party can make an offer without using Part 36. The offer may still be relevant to costs, but it will not automatically carry the formal consequences of Part 36.
Part 36 offer
A formal offer under CPR Part 36. It can carry serious costs consequences and must comply with the rule requirements. It is not suitable for every case.
Practical point
Choose the settlement route deliberately. A casual email, a without-prejudice offer, a Tomlin order and a Part 36 offer are not the same thing.
Without prejudice: what it does and does not do
Settlement communications are often marked “without prejudice”. The purpose is to allow parties to negotiate freely without ordinary settlement discussions being shown to the judge as evidence of liability.
“Without prejudice save as to costs” is different. It usually means the communication should not be shown to the judge deciding the merits, but may be shown later when the court is deciding costs.
The label is useful, but it is not magic. The content and purpose of the communication matter. A litigant in person should avoid mixing settlement proposals with threats, allegations, admissions, confidential material or unrelated complaints.
Use settlement labels carefully
- Use “without prejudice” for genuine settlement negotiations.
- Use “without prejudice save as to costs” where the offer may later be relevant to costs.
- Keep open correspondence separate from settlement correspondence.
- Do not assume every document marked without prejudice is automatically protected.
Avoid avoidable risk
- Do not make admissions unless you understand the consequence.
- Do not include unnecessary personal data.
- Do not publish or forward settlement discussions casually.
- Do not use settlement correspondence to harass or pressure the other party.
Understanding Part 36 offers
Part 36 is a formal settlement regime under the Civil Procedure Rules. It is designed to encourage settlement by attaching potential costs consequences to offers that are accepted, rejected, beaten or not beaten at trial.
A Part 36 offer can be made before or during proceedings and may relate to the whole claim, part of a claim, an issue, a counterclaim, or an appeal. It must be in writing, make clear that it is made pursuant to Part 36, specify a relevant period of not less than 21 days where required, state whether it relates to the whole claim or part of it, and say whether it takes any counterclaim into account.
Part 36 is technical. A defective offer may still be an ordinary offer, but it may not carry the formal Part 36 consequences. Litigants in person should be cautious about using template wording without understanding the rule.
Small claims warning
Part 36 does not apply to small-claims-track proceedings. Settlement can still be discussed in small claims, but the formal Part 36 regime is disapplied once the claim is on the small claims track.
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1Check the track and claim type.
Confirm whether Part 36 applies. Be especially careful if the claim is or may become a small claim.
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2Decide what is being offered.
State whether the offer resolves the whole claim, part of the claim, an issue, a counterclaim, interest or costs.
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3Use clear Part 36 wording.
The offer must make clear that it is intended to have the consequences of Part 36.
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4Specify the relevant period.
Where required, the relevant period must be not less than 21 days.
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5Check payment terms.
A defendant’s monetary offer needs careful wording, particularly where payment is proposed later than 14 days after acceptance.
Receiving a settlement offer
Do not reject a settlement offer immediately because it feels insulting. Equally, do not accept an offer simply because the pressure of proceedings is uncomfortable. Take time to assess the offer against the evidence and the risks.
A litigant in person should ask: what is the realistic value of the claim; what evidence supports it; what are the weaknesses; what are the likely costs; how long will the case take; and how difficult will enforcement be if judgment is obtained?
Offer assessment questions
- Merits: how strong is the claim or defence on the evidence?
- Value: what is the realistic financial value, not the best-case figure?
- Costs: what costs could be recovered or paid if the case continues?
- Delay: how long is the case likely to take if it does not settle?
- Enforcement: if you win, can the other side actually pay?
- Non-money terms: are apology, reference, correction, delivery up, repairs, confidentiality or undertakings needed?
If the offer is unclear, ask for clarification. If it is a Part 36 offer, check the deadline and costs consequences promptly. If the claim is significant, complex or emotionally charged, consider limited legal advice before accepting or rejecting it.
Recording settlement terms
Settlement should be recorded clearly. A vague agreement can create a second dispute. The settlement document should state what is being paid or done, by whom, by when, and what happens if the terms are not complied with.
Depending on the stage and nature of the case, settlement may be recorded in correspondence, a consent order, a Tomlin order, a court order, or a formal settlement agreement. Each route has different consequences.
Core settlement terms
- Parties to the agreement.
- Claim number and court, if proceedings have started.
- Amount to be paid or action to be taken.
- Payment deadline and method.
- Whether interest and costs are included.
- What claims are being settled and released.
Terms needing care
- Confidentiality clauses.
- Non-disparagement clauses.
- Undertakings.
- Costs provisions.
- Admissions or no-admission wording.
- Default provisions if payment is late.
Settlement terms can outlive the claim
Do not agree confidentiality, undertakings, releases or payment terms without understanding what they require and what happens if they are breached.
Practical settlement risks for litigants in person
Settlement is practical, but it is not risk-free. The main danger for a litigant in person is agreeing terms without understanding their effect, or rejecting a reasonable offer without understanding costs consequences.
Risk checklist
- Costs exposure: outside small claims, unreasonable conduct and offer decisions may affect costs.
- Part 36 consequences: formal Part 36 offers can alter the costs position significantly.
- Confidentiality: confidentiality terms can restrict what may be said later.
- Data protection: avoid unnecessary sharing of personal data in negotiation documents.
- Privilege: keep settlement discussions separate from open correspondence.
- Enforcement: a settlement is only useful if the terms are clear and enforceable.
- Full and final settlement: check exactly which claims are being released.
Some disputes need more than money. Contract disputes may require delivery, repair, performance, cancellation or return of goods. Property disputes may require access, works, undertakings or title steps. Employment-related settlements may involve references, tax, confidentiality and statutory formalities. Personal injury settlements may involve insurers and medical evidence.
The more complex the terms, the more important it is to seek advice before signing.
Final checklist before settling
Before accepting or making an offer, work through the position carefully. Settlement should be deliberate, documented and realistic.
- Evidence: have you assessed the case on documents and witness evidence, not just belief?
- Value: have you calculated a realistic settlement range?
- Costs: do you understand the likely costs position if the case continues?
- Track: do you know whether the claim is small claims, fast track, intermediate track or multi-track?
- Part 36: if using Part 36, have you checked that it applies and that the offer complies with the rule?
- Terms: are the payment, release, confidentiality and default provisions clear?
- Authority: does the person making or accepting the offer have authority to settle?
- Enforcement: what happens if payment is not made or the agreed action is not performed?
- Advice: have you taken advice where the settlement includes complex terms, undertakings, confidentiality or significant costs risk?
The closing point
Settlement can protect a litigant in person from the uncertainty, cost and stress of trial. But it should be approached with discipline: assess the evidence, understand the costs risk, use the right settlement route, and record the terms clearly.