17: Discontinuance before trial Flashcards
What procedural tools can resolve disputes without a trial?
- Default judgment under Part 12: when a defendant fails to respond to served proceedings in time.
- Judgment under Part 14: Against a defendant who admits the claim.
- Summary judgment under Part 24
- Striking out under Part 3.4
- Part 36 agreement to settle.
Which part of the Civil Procedure Rules governs discontinuance of proceedings by a claimant?
Discontinuance is governed by Part 38 of the Civil Procedure Rules (CPR).
What are the consequences of discontinuing a claim?
The claimant won’t be able to start new proceedings against the defendant and may be liable for the defendant’s costs on the standard basis.
When is court permission required for discontinuance?
Permission is required if:
- The court has granted an interim injunction.
- A party has given an undertaking to the court.
- The claim involves a child or protected party and is being settled.
What is the procedure for discontinuing a claim?
Serve a notice of discontinuance (Form 279)
File the notice at court.
When does discontinuance take effect?
Discontinuance takes effect on the date the notice is served on the defendant.
What are the cost consequences of discontinuance?
- All of the claim: Claimant liable for defendant’s costs up to notice of discontinuance.
- Part of the claim: Costs for the discontinued part up to notice date.
- Costs must be on the standard basis, assessed if not agreed, and paid within 14 days of agreement or assessment.
What is the process for setting aside a notice of discontinuance?
Applications must be made within 28 days of the notice, often in cases involving QOCS and potential fundamental dishonesty.
When is permission required for making another claim after discontinuance?
Permission is needed if the claim was discontinued after a defence was filed or the new claim is based on similar facts to the discontinued claim.
When is court approval required for a proposed settlement?
Court approval is needed if the claim involves a child (under 18) or a protected party (lacking mental capacity) under the Mental Capacity Act 2005.
What is the process for court approval of a settlement involving children or protected parties?
The process is as follows (under Part 8):
1. Parties agree on proposed terms of settlement.
2. The claimant issues a Part 8 claim for court approval.
3. The claimant files relevant documents.
4. Court fixes a hearing date.
5. The claimant, their litigation friend, and legal representatives attend the hearing.
6. Court decides whether to approve the settlement.
What form is used for an order on settlement on behalf of a child or patient?
Form N292 is used for the order on settlement on behalf of a child or patient.
What documents must the claimant include in the claim form for settlement approval?
The claimant must include:
- The litigation friend’s approval.
- The age and occupation of the child or protected party.
- Details of the defendant’s liability admission.
- Terms of the settlement (Form N292 Order on settlement on bhalf of child or patient).
- Financial advice related to the settlement.
- Details of the accident and medical reports.
- Schedule of loss and damage.
Who should attend the approval hearing for a child or protected party’s settlement?
The child or protected party should attend the approval hearing, along with their litigation friend and legal representative. The defendant’s legal representative should also attend.
What happens if the judge approves the terms of the proposed settlement?
If the judge approves the terms, the court will:
- Give directions on how the money is to be dealt with.
- Usually direct that any sums are paid into the Court Funds Office, which will hold and invest the sums until the child attains the age of 18, or the protected party regains mental capacity.
- Complete Court Funds Office Form CFO 320 for pre-investment hearings
- Make an order for costs.
What will a judge do with large and small orders for children or patients?
For large orders or settlements, direct that an application be made to the court of Protection to appoint a receiver and transfer funds to the court of Protection.
For smaller settlements or orders, administer and invest the fund.
What forms can an agreement take to settle a dispute?
An agreement can be:
- Oral or in writing.
- A written offer to settle (other than a Part 36 offer), such as a Calderbank offer or an offer without prejudice save as to costs.
- An exchange of letters or emails indicating agreement.
What is a settlement agreement or compromise agreement?
It is a legally binding contract that includes all agreed terms. If breached, it creates grounds for breach of the agreement, potentially leading to a Part 7 claim and a summary judgment application.
Why is Party 36 called a ‘self-contained code’?
Because it does not import principles of ordinary contract law.
What are the three ways to end proceedings once court proceedings have started?
- Court approval based on an agreed consent order following an application.
- Court approval based on an agreed Tomlin order following an application.
- Acceptance of a Part 36 offer to settle.
What is a consent order?
An order made by the court with the consent of all parties, resolving the court proceedings. It usually records the terms of the settlement and is enforceable like any court order.
What is a Tomlin order?
A Tomlin order is a type of court order used to record the terms of a settlement agreement reached between parties. It is particularly useful for incorporating terms that go beyond what the court has the power to order directly.
What are the parts of a Tomlin order?
1st part: The order - public document
2nd part: The schedule (settlement agreement) - confidential
What does the first part of a Tomlin order state?
The first part of a Tomlin order typically states:
- Parties have agreed terms of settlement.
- All further proceedings are stayed.
- Stay is based on the schedule’s terms being complied with.
- Provision for payment and assessment of costs.
- Right to apply if terms are not met.
What information is included in the schedule of a Tomlin order?
The schedule includes:
- Payment responsibility and amounts.
- Payment method (lump sum or installments).
- Payment due dates.
- Confirmation of full and final satisfaction.
- Default provision on interest for non-payment.
What is the main advantage of a Tomlin order over a consent order?
A Tomlin order allows for the settlement terms to be confidential and provides a practical way to enforce payment without needing further court proceedings.
What is the difference between a consent order and a Tomlin order regarding terms the court can enforce?
- Consent order: Contains only terms the court has power to order directly.
- Tomlin order: Contains terms the court has power to order and terms it does not have power to enforce directly.
How does a breach of terms differ between consent orders and Tomlin orders?
- Consent order: Breach terms can be enforced only by the court.
- Tomlin order: Breach terms can be enforced by returning to the original court for enforcement.
What is a Calderbank offer?
A Calderbank offer is an offer to settle a dispute made without prejudice save as to costs. It is an offer made “without prejudice save as to costs,” meaning it is a settlement offer that can be revealed to the court when deciding on costs after the trial has concluded. It also allows the offering party to set out the consequences if the offer is accepted. I
What is the difference between how offers outside Part 36 and Part 36 offers to settle are regulated?
Offers outside Part 36 are regulated by the law of contract and can include various matters.
Part 36 offers are regulated by Part 36, can only include matters within Part 36, and have automatic consequences related to costs.
What matters can offers outside Part 36 include?
They can include matters like confidentiality, publicity, an apology, continuing business relationships, and payments to third parties such as charities.
What matters can Part 36 offers include?
They can only include matters within the scope of Part 36, such as remedies that can be ordered by a court.
What happens if offers outside Part 36 are not accepted?
They will be considered when the court exercises its discretion as to costs.
What happens if Part 36 offers are not accepted?
They will have the near-automatic consequences set out in Part 36 when the court exercises its discretion as to costs.
