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Negotiating with the other side

This content applies to England & Wales

Negotiating with the other side prior to going into court, and agreements made 'at the court door'.

Before going into court

It is quite likely, particularly in possession cases, that the solicitor for the applicant may wish to speak to the defendant or her/his representative prior to going into court. S/he will be interested to know what defence or proposals the defendant will be putting to the court in order to avoid possession. It may be possible for the two sides to agree on certain facts or terms that can be presented to the court without the need to hear evidence or argument.

If there are facts that the parties agree upon, it is in their interest to make a written admission stating the agreed facts of the case. This type of admission is called a 'pre-action admission'[1] and should be submitted to the court in writing at least 14 days after the service of the claim form, or 14 days after the service of particulars, if served after the claim form.[2] Practice Direction 14 of the Civil Procedural Rules provides further information about admissions generally and how to file an admission.[3]

During the proceedings, it is important for an adviser to be aware of how intimidating the court can appear to a client, and s/he should try to ensure that the client does not agree to terms that s/he cannot afford. In cases where there is a defence that is disputed, but there is not enough time set aside at the hearing to discuss all the issues, it is often worth suggesting to the other party that the case should be adjourned to another date, with directions given by the court as to a timetable for the parties to exchange statements and evidence.

However, if a suitable agreement can be made at this point then, tactically, it is a good idea to do so as it saves time and possibly costs (see the section on Costs for more on this), in avoiding further adjournments. It may also be possible to make an agreement about costs, especially if the defendant has a good case.

Agreements made 'at the court door'

The court will not necessarily endorse the agreement made by the parties before the hearing. In some cases, such as possession claims for secure tenancies (which cannot be ended unless it is reasonable and/or suitable accommodation is available), the court must also satisfy itself that it is reasonable to give the order requested and that it is reasonable to give an order at all. The position as to the court's discretion is set out in statute and case law relevant to the type of case, and advisers should make sure they are familiar with this before the hearing. In practice, however, courts often do take the view that it is reasonable to endorse agreements made by the parties.

Where an agreement has been made prior to entering the court, then the representative who speaks first (usually the person representing the applicant/claimant) should inform the judge of this.

[1] Rule 14.1 Civil Procedure Rules 1998 SI 1998/3132.

[2] Rule 14.2 Civil Procedure Rules 1998 SI 1998/3132.

[3] Practice Direction 14, Civil Procedural Rules 1998 SI 1998/3132.

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