UK: To Settle or Not to Settle...

Last Updated: 16 September 2010
Article by Neil Jamieson and Tom White

Although litigators are usually much better at making attendance notes than their corporate counterparts, it is less common to make attendance notes of successful settlement discussions. This can mean, however, that the solicitor is exposed to liability if the client changes their mind.

In Fraser v Bolt Burdon (2009), one case in a series relating to the settlement of litigation, the High Court considered whether solicitors had been right to advise their client to accept a settlement offer, at the door of the court, of £200,000 plus costs in relation to a claim said to be worth between £15,000 and £1.4 million.

The facts of the dispute stretch back 30 years. Miss Fraser made a medical negligence claim against the health authority which ran St Bartholomew's Hospital ("St Bart's") in relation to the withdrawal of prescriptions of various drugs, in 1982, alleging that the abrupt withdrawal of the drugs caused her serious psychological disturbances. 

In 1985, Miss Fraser retained Parlett Kent ("PK") in relation to her claim against St Bart's. However, due to PK's negligence in issuing the writ, St Bart's successfully defended the claim on limitation grounds.

Miss Fraser subsequently commenced proceedings against PK for their failure to commence proceedings against St Bart's in time, retaining Bolt Burdon ("BB"). In the context of the claim against St Bart's, Miss Fraser received advice from counsel that the likely value of the claim against St Bart's was around £15,000. Notwithstanding this, and the fact that loss of chance principles applied to her claim against PK, Miss Fraser claimed that her inability to pursue the claim had caused her losses of almost £400,000, later revised to more than £1.4 million, including damages for psychiatric injury caused by the loss of the claim against St Bart's. 

PK admitted liability but disputed causation and loss. Various settlement offers were made, but none was accepted until the morning of the first day of the trial when PK offered £200,000 plus costs. On the advice of BB and the barristers instructed, Miss Fraser accepted that offer. However, she later commenced proceedings against BB, who added the barristers as third parties, in which she claimed the settlement was lower than any reasonably competent solicitor could have advised accepting, also alleging that BB had put her under undue pressure to accept the offer.

HHJ Seymour QC set out in detail the standard of care to be expected of solicitors and barristers in these circumstances, by reference to familiar authorities such as Bolam v Friern Hospital Management Committee (1957) and Saif Ali v Sidney Mitchell & Co (1980). The judge concluded that, where advice has been given without skill and care "it is no answer that the advice to settle, or not, was a matter of judgment, or had to be given without an opportunity for calm reflection."

Having analysed the merits of Miss Fraser's claims against both St Bart's and PK, the judge concluded that he was completely satisfied that the advice given to Miss Fraser to accept the offer was extremely good advice. Miss Fraser's case on just about every issue in the PK action was attended by considerable difficulties. The judge's view was that Miss Fraser's prospects of establishing liability against St Bart's had been no better than 60 per cent and that it was probable that her evidence on the effects of the prescription withdrawal would have been rejected. He concluded that there was a good chance that the value of the St Bart's Action, if 100 per cent successful, would be assessed at around £15,000. The claims based on the alleged psychological consequences of the negligence of PK faced significant difficulties as a matter of law and as a matter of fact. 

This case is an extreme example of a situation commonly faced by litigators. It is not unusual for a client who appears content, or at least in full agreement, with the terms of a settlement to suffer "post-settlement remorse" and end up regretting the decision, sometimes much later. This can be a particular risk when the settlement takes place at the doors of the court: after a period of reflection with the pressure off, the client may see the position through different eyes.

What can be done to try to avoid these situations arising? Fraser v Bolt Burdon offers practical guidance in that respect because BB were able to produce very full attendance notes of their discussions with Miss Fraser in relation to their and counsel's advice as to why the settlement offer was a good one, and the reasons for their advice. There is almost always an element of judgment and experience involved in giving advice with regard to settlement but it will be far easier to satisfy a court that reasonable skill and care has been exercised in reaching that judgment where it can be shown that the relevant considerations have been articulated and recorded. 

Although litigators are generally much better at keeping attendance notes than their transactional counterparts, there is often a failure to make attendance notes following settlement. Most likely this is because there is a tendency on the part of the solicitor to think that the settlement agreement itself records what has happened, and secondly there is a natural desire to consider the case closed following settlement and to move on to the next thing. However, a clear file note should help to dispel any complaint that the client did not understand the advice or was put under pressure to settle when what they wanted was to stand and fight. It can be particularly important where an unusual term is included in the settlement, or the client's views of the litigation were unreasonable. Where counsel is involved, why not email a copy of the file note to them and ask them to confirm that it is an accurate record? If clear and comprehensive attendance notes are available, if the worst happens and a client should bring a claim, then this can assist to deal with the claim at an early stage in a summary judgment application (as demonstrated in another recent case Webb v MacDonald & Another (2010)). 

Where time permits, advice with regard to settlement should obviously be in writing and the client's express approval obtained. That luxury may not be available for a settlement at the court door. In those cases, an attendance note is essential, better still if it is followed up by a confirmatory letter. Claims such as that in Fraser very often follow after a significant delay when the case has been long forgotten. A letter on the file written immediately after the settlement confirming the advice given and the reasons for settling, if it has gone unchallenged at the time, will make it much harder for the client to change its mind later - and if it does, the credibility of the claim may be fatally undermined.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.