ch 19 Flashcards
can terms of a settlement be wholly or partly incorporated into a court order or judgment?
yes
what does CPR Part 2 provide for?
restrictions concerning judges having jurisidiction to make a certain order
or judge not prepared to make an order
what can be made as consent orders without a judge?
settlements restricted to common law relief (money, delivery of goods)
stay or dismissal of the case
costs
how can a compromise incorporated in a court order/judgement be enforced?
return to court within existing proceedings
what are the ways of recording settlements in existing court proceedings?
settlement agreement (any form ch 18)
judgment for immediate payment (settlement reached at door of court, with judgment being pronounced when case called before a judge)
judgment for agreed sum subject to a stay of execution pending payment by stated instalments
inform court case has been settled upon terms endorsed on counsel’s briefs
inform court case has been settled in terms of contract
consent order-setting out agreement in the form of undertakings (non-monetary, injunctive relief, specific performance, final or interim relief)
consent order staying all further proceedings upon the agreed terms
consent order for ‘no order’ save as to costs but agreed terms in recitals (non-money claims)
tomlin order
do terms have to be recorded in a court order?
no
what does tomlin order do?
stay proceedings while terms of the compromise are put into effect
what are backsheets?
barristers reach simple agreement
write it on backsheet
evidence of oral agreement
who signs the endorsement brief?
lawyer of other side maybe parties (reluctant client)
with backsheet do you need an additional written record of the agreement?
no
when should backsheet be used?
terms not subject to client approval
final agreement
when can interim orders be used?
record compromise agreemnts
proceedings have been issed
if there has been a pre-commencement application for an interim order
what happens when parties reach agreement on terms of interim application?
may be recorded as undertakings or in a consent order
can a court make a consent order without valid consent of parties?
no
can a court make a consent order without valid consent of parties?
no
what is a true consent order?
based on a real contract
grounds on which a true consent order can be set aside?
grounds that would justify the setting aside of a contract
what is a submission to agreed terms?
based on one or more of parties ‘not objecting’
how can a submission to agreed terms be varied?
by the courts
same circumstances as any other order made by party consent
what is a tomlin order?
type of consent order
consists of order and schedule
what is dealt with on the order?
a stay of the proceedings
each party can apply to the court to compel compliance
payment and assessment of costs
what is in the schedule?
terms of compromise
can go beyond scope of courts
what is a consent order?
legal doc confirming the agreement
makes the agreement legally binding
drafted by solicitor
pros of schedule?
not limited to scope of courts
can record long and complex terms
more flexible wording
private and confidential
disadvantage of tomlin order?
court’s enforcement powers are more limited compared to consent order
hard to vary terms
when might a tomlin order be unnecessary?
matter just involves payment of money
when can court vary terms of court order?
follow CPR
material change of circumstances
options for future litigation?
Staying proceedings
Entry judgment: end proceedings
Dismissing claim: dismisses proceedings-never should have begun
Discontinuing: ends claim, payment
