Chap 9 Termination & Compromise

Question 1

1/ SANCTIONED OFFERS AND SANCTIONED PAYMENTS

Definition ?

Nature of offers to settle within Ord 22

Time for making a sanctioned offer or sanctioned payment ?

Procedure

Acceptance of offer or payment

Withdrawal of the offer or payment

The fact that a SO has been made should generally not be disclosed

Costs consequences of offers to settle

Other consequences of acceptance offers to settle

Answer 1

Time
Any time after commencement of proceedings
In general should be made at least 28 days before the commencement of the trial

Procedure
In writing
States :
- whole or part of the claim
- whether takes into account counterclaim or set-off
- whether interest is offered, amount offered, rate and period

After 28 days from date of SO, offered may only accept it if agreement on liability for costs and court gives leave to accept it

Request clarification within 7 days of the offer

Acceptance
Notice of acceptance
Offers made 28 days before trial Can be accepted withdrawn or diminished, otherwise court leave is required

A SO made 28 days before trial may not be withdrawn or diminished before expiry of 28 days unless leave is granted

Leave is required to withdraw or diminish à SO made less than 28 Days before trial

Not disclosed until court has decided all questions of liability other than costs, but permissible if not causes embarrassment to the court or unfair prejudice

Question 2

2/ OFFERS WITHOUT PREJUDICE SAVE AS TO COSTS

calderbank offer

Answer 2

If the offer is not made in accordance with Ord 22, it does not have the costs consequences

Question 3

3/ MEDIATION - PRACTICE DIRECTION 31

Definition ?

Advantages ?

Scope of PD 31

Mediation certificate

Mediation notice

Mediation responses

Mediation minute

Directions by the court

Interim stay of proceedings

Adverse cost order for unreasonable failure to mediate

Answer 3

Advantage
Informality confidentiality saving time and costs
Parties can reach “commercial” settlement

Scope
All civil proceedings in the CFI and DC commenced by writ
Excluded: construction arbitration personal injuries, certain specific regulations

MC
After lose of pleadings, parties must complete a timetabling questionnaire part I II and III

MR
14 days

MM
3 days

Court may assist but cannot appoint mediator and determine rules of mediation