Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - THE LAW AND PRACTICE OF COMPROMISE WITH PRECEDENTS (3RD EDITION)
THE LAW AND PRACTICE OF COMPROMISE with Precedents (3rd Edition) by David Foskett, Q. C. Sweet & Maxwell, London (1991, liii and 346 pp., plus 103 pp. Appendices and 14 pp. Index). Hardback £95.
Most cases are settled. Indeed, the English legal system, unlike some of its Continental brethren, is culturally permeated with the idea of settling, and every opportunity is given to the parties to a dispute to compromise their differences. The generosity of English law is evidenced by the existence of a specific head of privilege, “without prejudice” privilege, preventing the admission in evidence of communications concerning settlement, and even preventing their disclosure to third parties who have not yet settled (see Rush & Tompkins Ltd. v. G.L.C. [1989] A.C. 1280). Techniques such as payment of money into court (see R.S.C. Ord. 22) and Calderbank offers (see Calderbank v. Calderbank [1986] Fam. 93), riding as they do on the back of the rules relating to payment of legal costs, reinforce the view that settlement is almost more important than winning.
The values of the English legal system are those of the prudent family man, anxious to avoid undue risk, and willing to relinquish part of a speculation in order to achieve finality and certainty; they are not those of the inveterate gambler who would prefer a 5% chance of a million pounds to a certainty of £50,000. Whether these values accurately reflect the system’s current consumers is not known, but there can be no denying that, even if the values of the British public have shifted over generations, the legal principles governing compromise have, by and large, remained static. At the same time, the comparative sophistication of modern life and the constant novelty of fact situations arising mean that the law in this area is both more important (as a solid place on which to stand above the shifting sands of life) and more complex than ever before. Hence the importance of this book, now in its third edition. Just as the second edition (in 1985) was a considerably expanded version of the first edition (first published in 1980), so too the third edition is a considerably expanded version of the second. It also now forms part of Sweet & Maxwell’s Litigation Library, which is apparently proving very successful.
The revision of the text of the second edition has been substantial. In some places the text is less detailed, in other places more detailed, than its predecessor. New chapters have been added on “Insurance Interests”, “Compromise Employment Contracts and Compromise” and on “Crown Office List Proceedings”. Following the trend set by other volumes in the Litigation Library, greater assistance is given to those without ready access to law reports by setting out the facts of important cases. In the result, the text is some 54 pages (about 18%) longer. The appendices and index have also been expanded. In reviewing the second edition of this book, your reviewer observed that the book dealt “rather more with matrimonial and
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