Settlement Flashcards
Does a solicitor have an implied authority to settle the clients claim prior to proceedings having been issued
no
When can a part 36 offer be accepted prior to the issue of proceedings
clients approval
How can negotiations be conducted
via orally or in writing on a without prejudice basis
What is the effect of using without prejudice
Ensures negotiations cannot be referred to in court at a later date except to prove settlement terms
What happens if settlement is reached prior to proceedings as regards costs
c not entitled to recover any legal costs/any interest under s69 CCA or s35A SCA 1981
In which form must settlement take after settlement terms have been agreed?
in writing
what must be included in any offer to settle?
all necessary terms Evans v Trebuchet Designs
what are the formalities for a consent order per r40.6(7)
a) order agreed by the parties must be drawn up in the terms agreed
b) it must be expressed as being ‘by consent’
c) it must be signed by the legal representative acting for each of the parties to whom the order relates
what effect does a consent order have
open to public inspection & must be within the powers of a court to order
what does a tomlin order do
stays the claim on agreed terms set out in a schedule to the orde r
When can part 36 offers be made r36.7(1)
before and during proceedings
do part 36 offers apply to small claims
no - only in fast and intermediate
what must a part 36 offer include to constitute a valid offer r36.5
a) be in writing
b) make it clear it is made pursuant to part 36
c) specify a period of not less than 21 days during which, if the offeree accets the offer, the defendant will pay the claimants costs under r36.13
d) state whether it relates to the whole of the claim, or part of it, or to an issue that rises in it, and if so to which part or issue
can the offeror be forced to extend the relevant period
offeree may ask to extend the relevant period, but the court has no power to order an extension
what happens if offeree accepts part 36 after the relevant period expiers
court determines costs
when should an offeree challenge a part 36 offer
without delay
which form can be used to make a part 36 claim
Form N242A
when must a defendant pay part 36 offer
within 14 day of the claimant accepting the offer
Holden v Holden
offer to pay lump sum in two instalments over a period greater than 14 days held invalid
can an offeror make more than one part 36 offer
yes- can reduce the offer as time passes
can a part 36 offer be accepted even after offeree has put forward a different proposal
yes- different to contract law
when is a part 36 offer deemed to have been made r36.7
when served on the offeree
can offeror change conditions/withdraw their offer so the part 36 offer is less advantageous to c
with court approval provided offeree has not given written acceptance
what if c wants to increase the amount they receive?
serve notice of variation of OG offer under r36.9(4)
what if an offeree is unclear on the terms of a part 36 offer
they can (within 7 days of receiving the offer) request clarification
how to accept a part 36 offer
serving written notice of acceptance on the offeror
what happens to a claim when the part 36 offer has been accepted?
claim is stayed
what if an accepted sum is not paid within 14 days?
claimant may enter judgment for the unpaid sum
what costs order will a court make where claimant accepts d’s offer late
r36.13(5) unless court considers it unjust:
- d ordered to pay c’s costs of proceedings up to the date on which the relevant period expired
- c ordered to pay d’s costs for the period from the date of expiry of the relevant period to the date of acceptance
what if the parties cannot agree costs when late acceptance occurs
court assesses costs on a standard basis
spill costs order
court penalises c for proceeding with the claim but failing to secure a judgment better for c than the part 36 order
r36.17(3) split costs order
defendant is entitled to costs (inc recoverable pre-action costs) from the date on which the relevant period expired and
interest on those costs
why is it better to offer a part 36 offer earlier
earlier it is done, greater chances of potential costs protection for D and more pressure on C
interest cap per s36.17(4) on damages
10% above base rate
how must interest be awarded
proportionate to the circumstances of the case
what is the rule for part 36 offers involving children and protected parties
no settlement is binding without the court’s approval
how to file a discontiuance
form n279 on all other parties + consent if required
who is liable for costs where c discontinues the case?
c
