Settlements Flashcards
Can the prospective claimant party to a PRE-ACTION settlement recover their legal costs?
No, they cannot recover their legal costs unless this has been agreed by the parties.
What is a Consent Order?
A consent order is a court order that records the terms of a settlement reached between the parties after proceedings have started.
What is required for a consent order to be drawn up?
Where none of the parties is a litigant in person, it’s often possible to avoid an application to the court by drawing up a court order or judgment for sealing by a court officer.
Formalities for a consent order are:
- The order agreed by the parties must be drawn up in the terms agreed;
- It must be expressed as being ‘By Consent’; and
- It must be signed by the legal representatives acting for each of the parties to whom the order relates.
What terms may be contained in a consent order?
Only terms that are within the powers of the court to order may be agreed (e.g. the payment of a sum of money).
Are consent orders open to public inspection?
Yes, they are.
This makes them undesirable for parties who wish any terms to be confidential.
What order can the parties seek to record their settlement if they want the terms to be confidential and/or want enforceable terms that a court does not have power to order?
Here, the parties can seek a Tomlin Order.
What does a Tomlin Order do?
A Tomlin Order stays the claim (pauses it) on agreed terms that are set out earlier in a schedule to the order or separately.
Which terms must appear in the Tomlin Order itself?
- That the order is made ‘by consent’ - i.e. there was an agreement.
- That the proceedings are paused.
- Liberty to apply - this provision allows any party to apply to the court for the stay of proceedings to be lifted and the court can be asked to enforce the settlement if a party does not perform its part of the agreement.
New court proceedings do not have to be commenced to enforce the terms.
- Signed by the parties’ solicitors - this is a formal requirement signifying consent to the agreement.
Which terms must be set out in a schedule to the Tomlin order or in a separate document?
Any terms that the parties wish to keep confidential.
Any terms that the court does not have power to order.