Settlements Flashcards

1
Q

Can the prospective claimant party to a PRE-ACTION settlement recover their legal costs?

A

No, they cannot recover their legal costs unless this has been agreed by the parties.

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2
Q

What is a Consent Order?

A

A consent order is a court order that records the terms of a settlement reached between the parties after proceedings have started.

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3
Q

What is required for a consent order to be drawn up?

A

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:

  1. The order agreed by the parties must be drawn up in the terms agreed;
  2. It must be expressed as being ‘By Consent’; and
  3. It must be signed by the legal representatives acting for each of the parties to whom the order relates.
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4
Q

What terms may be contained in a consent order?

A

Only terms that are within the powers of the court to order may be agreed (e.g. the payment of a sum of money).

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5
Q

Are consent orders open to public inspection?

A

Yes, they are.

This makes them undesirable for parties who wish any terms to be confidential.

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6
Q

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?

A

Here, the parties can seek a Tomlin Order.

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7
Q

What does a Tomlin Order do?

A

A Tomlin Order stays the claim (pauses it) on agreed terms that are set out earlier in a schedule to the order or separately.

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8
Q

Which terms must appear in the Tomlin Order itself?

A
  1. That the order is made ‘by consent’ - i.e. there was an agreement.
  2. That the proceedings are paused.
  3. 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.

  1. Signed by the parties’ solicitors - this is a formal requirement signifying consent to the agreement.
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9
Q

Which terms must be set out in a schedule to the Tomlin order or in a separate document?

A

Any terms that the parties wish to keep confidential.

Any terms that the court does not have power to order.

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