The simple answer is by negotiation, but it is in practice often a little more difficult than I have possibly suggested.

You will see from other items in my blog that if I have taken your case on I will have had to have satisfied myself that there was a reasonable chance of winning. Not all cases are settled out of court some end up in court, and victims sometimes sadly lose, and this might because their case is time barred because of the Limitation Act 1980, or because they cannot prove the abuse, or that the person or organisation sued is responsible for the abuse.

Provided that I can prove to my satisfaction that there is sufficient evidence that:

• the abused occurred as alleged by the client
• that the person or organisation accused is in fact responsible
• that there is medical evidence to prove that the victims has suffered a recognised medical illness or condition as a result of the abuse
• that we have a reasonable chance of overcoming any limitation defence

then there is in my opinion every chance of settling the case without a trial.

The opponent (Defendant)’s solicitor will also look at the evidence and advise his/her client in the just the same as you will be as to the prospects of success from their prospective. You only go to trial if you stand a good chance of winning and/or getting a better result than if you settle.

I always advise my clients to make an offer to settle. Once we have worked out what the claim is worth we advise the client to make an offer. In other words they say what they would accept in order to bring their claim to an end. An offer is made in accordance with court rules and certain language must be used to make it compliant (Civil Procedure Rules Part 36).

It is also open to your opponent to make their own offer. If an offer is accepted then that is the end of the case: the victim receives their compensation.

If both parties make offers, and neither one of them is accepted then the solicitors are likely to negotiate to try and broker an agreement. This might be done by picking-up the telephone and talking to each other, or maybe by having a meeting, or through an exchange of letters.

If the case is very advanced and there is the prospect of a trial then the parties’ barristers might meet to negotiate.
Cases are sometimes settled through mediation, and this is a process where an independent third party brokers an agreement at a meeting of the parties and their respective lawyers. This is often highly effective, but before there is any chance of this happening both you and your opponent have to agree to it.

Although you will receive legal advice about offers at the end of the day it is always your decision whether or not to accept. There are potential pitfalls if against legal advice you reject an offer. If in receipt of Public Funding (“Legal Aid”) this might be withdrawn, and you would be left to finance the case yourself, and this could be very expensive. If you are proceeding on a “no win, no fee” basis with ATE (after the event insurance cover) the insurer might decline to provide further cover (always worth checking to see the terms of the policy beforehand). Finally if the case goes to trial and you fail to recover more than what was offered by your opponent it is likely that you will be ordered to pay their costs, and this might have to come out of your damages. Ouch!