Disputes - Discontinuance and Settlement (Interim) (8) Flashcards
What is settlement?
Settlement: Parties can agree to settle before the claim reaches judgment.
(1) Pre-Action: Claims can be settled before a claim is issued in court. They must in writing, to allow enforcement if necessary. Costs are not recoverable unless agreed.
(2) Mid-Action: Claims can be settled once a claim is issued, but should be recorded by court order or judgement to allow enforcement. This includes costs. The two primary methods are ‘Consent Order’ and ‘Tomlin Order’.
(3) Calderbank Offer: Settlement offers are generally ‘Calderbank Offers’, meaning without prejudice, save as to costs. This means correspondence remains confidential at court, other than in respect of calculating costs.
(4) Part 36 Offer: Part 36 offers impose severe consequences for unreasonable refusal (see other aspects of costs).
What is discontinuance?
Discontinuance: Claimants can discontinue (end) a claim against one or all defendants without settlement.
(1) Notice of Discontinuance: Claimant must file notice of discontinuance on all parties. Proceedings end on the date of deemed service.
(2) Court Permission: Permission of the court is generally not required, subject to:
Multiple Claimants: If there are other claimants, they must consent by writing. If they do not, the court can grant permission.
Special Factors: If the claim involves certain factors, such as an existing interim injunction or interim payment, then court permission is required to discontinue the claim.
(3) Costs: Claimants are liable for costs on standard basis up to date of deemed service (unless otherwise ordered).
What is a consent order?
Consent Order
Consent Order: Consent orders are court judgments approving the terms of settlement.
(1) Terms: Terms must be those capable of forming a court order, meaning agreements that a court could not order (such as discounts) are not permitted.
(2) Permission: Terms will be accepted if proper, clear, and neither party is a litigant-in-person. The order must contain all express terms, refer to settlement ‘by consent’, and be signed by both legal representatives.
(3) Effect: Terms are recorded in the consent order, and the proceedings end. Terms are publicly inspectable.
What is a tomlin order?
Tomlin Order
Tomlin Order: Tomlin orders are court orders that stay the claim, as a means of keeping settlement terms confidential.
(1) Contents: The only contents required are: a) reference to an agreement; b) confirmation of ‘stay’; c) permission to apply to stay proceedings or enforce settlement; d) terms of costs order; and e) signature of representatives.
(2) Schedule: The agreed terms of settlement are contained in a ‘Schedule’, or a separate attached document, which is not publicly inspectable, and can contain more flexible settlement options (such as discounts).
(3) Effect: Aside from payment of costs, all settlement terms remain private, protecting reputation and confidentiality. These cannot be directly enforced, but proceedings can be reopened if they are not adhered to.
