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61.Settlement discussions will be conducted between the applicant’s legal representatives and solicitor/counsel employed by the Board.  The legal representatives of the Board will take their instructions from the Board’s settlement panel.  The applicant will be entitled through his or her legal representative to information on the basis of which any offer is made; this will include details of the weighting used by the settlement panel.

62.Settlement discussions will be without prejudice on both sides, so that if agreement is not reached the application can be heard by a different division of the Board without reference to the fact, or the contents, of the settlement discussions.

63.In the event of agreement, the Board will as soon as may be thereafter notify the applicant in writing of the details of the matters agreed in the manner set out in section 13 of the 2002 Act. This Notice of Award will constitute the notification of an award under the Act.

64.Where agreement has been reached and a Notice of Award has been issued by the Board, the applicant retains his or her full rights to accept, reject or send the award for review as provided in section 13 of the Act within the period specified in the Act.  If no written reply has been received by the Board within one calendar month of the date of receipt of the Notice of Award by the applicant, he or she will be deemed to have rejected the award.

65.Where an applicant accepts a settlement award:

(i)He or she must agree in writing to waive any right of action which he or she may otherwise have had against a public body or a person who has made a contribution under section 23(5) of the Act, and to discontinue any other proceedings instituted by the applicant against any such person or body that arise out of the circumstances of the application before the Board.  No redress will be paid to an applicant until such a waiver signed by the applicant has been received by the Board

(ii)Costs will be awarded on the same basis and using the same procedures as if the application had been determined following a hearing by the Board.

66.If after any settlement discussions there is no agreement, the application will proceed to hearing as if the settlement discussions had never taken place, save that the members of the Board who formed the settlement panel shall be disqualified from sitting on the division of the Board hearing the application. Further the fact of previous discussions or any details thereof shall not be made known to the Board members forming the division of the Board hearing the application.  This duty of confidentiality will extend to any legal adviser involved in the negotiations in relation to his or her contact with the new decision makers.

The hearing will not take place on the same day as the settlement discussions; a separate date for the hearing will be scheduled by the Board’s Registrar.

Applicants are specifically advised that the members of the Board who hear the application may take a different view of the application and make an award which is less than the amount of the settlement.  It is, of course, also possible that their award will be higher than the settlement amount.  

67. It is to be noted that the Minister retains the right under section 13(13) of the Act to submit any award, including one arising from a settlement, to the Review Committee.

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