Settlement

Question 1

What is a consent order?

Answer 1

An order in which a settlement is recorded

Question 2

What is the effect of a consent order?

Answer 2

Has the effect of a ‘normal’ court order but indicates that the parties agree to the terms it sets out, so that there is no need for the court to hear arguments from both sides.

Question 3

What are the two types of consent orders?

Answer 3

1. A consent order based on a contract: evidence of the contract between the parties and as such will only rarely be interfered with by the court.
2. A consent order not based on a contract: not a contract but simply the parties agreeing terms of the settlement in the claim. May be altered or varied by the court.

Question 4

What is a Tomlin Order?

Answer 4

A type of consent order.

Made up of two parts:

Part 1 - ‘Order’
- looks like any other consent order
- public
- contains actions to be taken by the court (and enforceable by the court) e.g. stay of proceedings, permission to apply, detailed assessment of costs
- any direction for payment of money out of court or the payment and/or assessment of costs must be contained in Part 1

Part 2 - ‘Schedule’
- Generally confidential
- contains terms of agreement - enforceable with a further court order
- enables parties to include provisions beyond those a court could order

Question 5

When is a Tomlin Order used?

Answer 5

Generally used when either:

• the parties wish for the key settlement terms to be confidential; and/or
• when the agreed settlement terms go beyond those that the court could generally order as part of the proceedings

Question 6

How is a consent or Tomlin Order put in place?

Answer 6

Although they reflect the agreement of the parties, they still need the court’s approval.

Once parties have agreed the content of the order, they will need to apply to the court to have the order made.

If court makes the order, then the order takes effect like any other court order.

Question 7

What happens if a settlement is reached during a period when the claim as been stayed?

Answer 7

The application for the consent/Tomlin Order is treated as an application also to have the stay lifted.

Question 8

What happens if a settlement is reached before proceedings are issued?

Answer 8

There is no need for a consent or Tomlin order.

Parties will record their agreement in a settlement agreement - effectively a form of contract.

Question 9

Can consent orders be used in interim applications?

Answer 9

Yes, consent orders can also be used to indicate agreement in relation to an interim application to court.

E.g. needs to apply for extension of witness statements, both parties agree extension but it is longer than 28 days.

Standard application would be made but at the same time:
1. A consent order would be drawn up recording the agreement and both parties would indicate agreement to this consent
2. The consent order would be filed at court - ideally when the application notice is filed, but later if necessary
3. The applicant would usually invite the court to consider the application on paper and without a hearing.

Question 10

What can a consent order be used to settle?

Answer 10

Consent orders can be used to settle an entire claim, but they can also be used for an interim application.