Settling the claim (W15)

Question 1

CPR 36.2 - What a Part 36 offer may be made in respect of

Answer 1

A Part 36 offer may be made in respect of the whole, or part of, or any issue that arises in—

(a) a claim, counterclaim or other additional claim; or
(b) an appeal or cross-appeal from a decision made at a trial.

Question 2

CPR 36.3 - Definition of terms

Answer 2

(a) the party who makes an offer is the “offeror”
(b) the party to whom an offer is made is the “offeree”
(c) a “trial” means any trial in a case whether it is a trial of all issues or a trial of liability, quantum or some other issue in the case
(d) a trial is “in progress” from the time when it starts until the time when judgment is given or handed down
(e) a case is “decided” when all issues in the case have been determined, whether at one or more trials
(f) “trial judge” includes the judge (if any) allocated in advance to conduct a trial; and
(g) “the relevant period” means—
(i) in the case of an offer made not less than 21 days before a trial, the period specified under rule 36.5(1)(c) or such longer period as the parties agree;
(ii) otherwise, the period up to the end of such trial.

Question 3

CPR 36.4 - Application of Part 36 offers to appeals

Answer 3

• Except where a Part 36 offer is made in appeal proceedings, it shall have the consequences set out in this Section only in relation to the costs of the proceedings in respect of which it is made, and not in relation to the costs of any appeal from a decision in those proceedings.

Question 4

CPR 36.5 - Form and content of a Part 36 offer

Answer 4

(1) A Part 36 offer must—
(a) be in writing;
(b) make clear that it is made pursuant to Part 36;
(c) specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with rule 36.13 or 36.20 if the offer is accepted;
(d) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and
(e) state whether it takes into account any counterclaim.

• (2) Paragraph (1)(c) does not apply if the offer is made less than 21 days before the start of a trial.
• (3) In appropriate cases, a Part 36 offer must contain such further information as is required by rule 36.18 (personal injury claims for future pecuniary loss), rule 36.19 (offer to settle a claim for provisional damages), and rule 36.22 (deduction of benefits).
• (4) A Part 36 offer which offers to pay or offers to accept a sum of money will be treated as inclusive of all interest until—
  (a) the date on which the period (the relevant period) specified under rule 36.5(1)(c) expires; or
  (b) if rule 36.5(2) applies, a date 21 days after the date the offer was made.

(5) A Part 36 offer to accept a sum of money may make provision for accrual of interest on such sum after the date specified in paragraph (4). If such an offer does not make any such provision, it shall be treated as inclusive of all interest up to the date of acceptance if it is later accepted.

Question 5

CPR 36.6 - Part 36 offers: defendant’s offer

Answer 5

• a Part 36 offer by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money.
• A defendant’s offer that includes an offer to pay all or part of the sum at a date later than 14 days following the date of acceptance will not be treated as a Part 36 offer unless the offeree accepts the offer.

Question 6

CPR 36.7 - Time when a Part 36 offer is made

Answer 6

• A Part 36 offer may be made at any time, including before the commencement of proceedings.
• A Part 36 offer is made when it is served on the offeree.

Question 7

CPR 36.8 - Clarification of a Part 36 offer

Answer 7

• The offeree may, within 7 days of a Part 36 offer being made, request the offeror to clarify the offer.
• If the offeror does not give the clarification requested within 7 days of receiving the request, the offeree may, unless the trial has started, apply for an order that the offeror do so.
• If the court makes an order, it must specify the date when the Part 36 offer is to be treated as having been made.

Question 8

CPR 36.9 - Withdrawing or changing the terms of a Part 36 offer generally

Answer 8

• A Part 36 offer can only be withdrawn, or its terms changed, if the offeree has not previously served notice of acceptance.
• The offeror withdraws the offer or changes its terms by serving written notice of the withdrawal or change of terms on the offeree.
• Subject to rule 36.10, such notice of withdrawal or change of terms takes effect when it is served on the offeree.
• Subject to paragraph (1), after expiry of the relevant period—
  (a) the offeror may withdraw the offer or change its terms without the permission of the court; or
  (b) the offer may be automatically withdrawn in accordance with its terms.
  Where the offeror changes the terms of a Part 36 offer to make it more advantageous to the offeree—
  (a) such improved offer shall be treated, not as the withdrawal of the original offer; but as the making of a new Part 36 offer on the improved terms; and
  (b) subject to rule 36.5(2), the period specified under rule 36.5(1)(c) shall be 21 days or such longer period (if any) identified in the written notice.

Question 9

CPR 36.10 - Withdrawing or changing the terms of a Part 36 offer before the expiry of the relevant period

Answer 9

• this rule applies where the offeror serves notice before expiry of the relevant period of withdrawal of the offer or change of its terms to be less advantageous to the offeree.
• Where this rule applies—
  (a) if the offeree has not served notice of acceptance of the original offer by the expiry of the relevant period, the offeror’s notice has effect on the expiry of that period; and
  (b) if the offeree serves notice of acceptance of the original offer before the expiry of the relevant period, that acceptance has effect unless the offeror applies to the court for permission to withdraw the offer or to change its terms—
  (i) within 7 days of the offeree’s notice of acceptance; or
  (ii) if earlier, before the first day of trial.
• On an application, the court may give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.

Question 10

CPR 36.11 - Acceptance of a Part 36 offer

Answer 10

• A Part 36 offer is accepted by serving written notice of acceptance on the offeror.
• a Part 36 offer may be accepted at any time (whether or not the offeree has subsequently made a different offer), unless it has already been withdrawn.
• The court’s permission is required to accept a Part 36 offer where—
  (a) rule 36.15(4) applies;
  (b) rule 36.22(3)(b) applies, the relevant period has expired and further deductible amounts have been paid to the claimant since the date of the offer;
  (c) an apportionment is required under rule 41.3A; or
  (d) a trial is in progress.
• Where the court gives permission, unless all the parties have agreed costs, the court must make an order dealing with costs, and may order that the costs consequences set out in rule 36.13 apply.

Question 11

CPR 36.13 - Cost consequences of acceptance of a Part 36 offer

Answer 11

• where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings (including their recoverable pre-action costs) up to the date on which notice of acceptance was served on the offeror.
• Where—
  (a) a defendant’s Part 36 offer relates to part only of the claim; and
  (b) at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim,
  the claimant will only be entitled to the costs of such part of the claim unless the court orders otherwise.
• costs under are to be assessed on the standard basis if the amount of costs is not agreed.
• Where—
  (a) a Part 36 offer which was made less than 21 days before the start of a trial is accepted; or
  (b) a Part 36 offer which relates to the whole of the claim is accepted after expiry of the relevant period; or
  (c) a Part 36 offer which does not relate to the whole of the claim is accepted at any time,
  the liability for costs must be determined by the court unless the parties have agreed the costs.
• Where parties cannot agree the liability for costs, the court must, unless it considers it unjust to do so, order that—
  (a) the claimant be awarded costs up to the date on which the relevant period expired; and
  (b) the offeree do pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.
• In considering whether it would be unjust to make the orders, the court must take into account all the circumstances of the case
• The claimant’s costs include any costs incurred in dealing with the defendant’s counterclaim if the Part 36 offer states that it takes it into account.

Question 12

CPR 36.14 - Other effects of acceptance of a Part 36 offer

Answer 12

• If a Part 36 offer is accepted, the claim will be stayed.
• In the case of acceptance of a Part 36 offer which relates to the whole claim, the stay will be upon the terms of the offer.
• If a Part 36 offer which relates to part only of the claim is accepted, the claim will be stayed as to that part upon the terms of the offer.
• If the approval of the court is required before a settlement can be binding, any stay which would otherwise arise on the acceptance of a Part 36 offer will take effect only when that approval has been given.
• Any stay arising under this rule will not affect the power of the court—
  (a) to enforce the terms of a Part 36 offer; or
  (b) to deal with any question of costs (including interest on costs) relating to the proceedings.
• Unless the parties agree otherwise in writing, where a Part 36 offer that is or includes an offer to pay or accept a single sum of money is accepted, that sum must be paid to the claimant within 14 days of the date of—
  (a) acceptance; or
  (b) the order when the court makes an order under rule 41.2 (order for an award of provisional damages) or rule 41.8 (order for an award of periodical payments), unless the court orders otherwise.
• If such sum is not paid within 14 days of acceptance of the offer, or such other period as has been agreed, the claimant may enter judgment for the unpaid sum.
• Where—
  (a) a Part 36 offer (or part of a Part 36 offer) which is not an offer to which paragraph (6) applies is accepted; and
  (b) a party alleges that the other party has not honoured the terms of the offer,
  that party may apply to enforce the terms of the offer without the need for a new claim.

Question 13

CPR 36.15 - Acceptance of a Part 36 offer made by one or more, but not all, defendants

Answer 13

• If the defendants are sued jointly or in the alternative, the claimant may accept the offer if—
  (a) the claimant discontinues the claim against those defendants who have not made the offer; and
  (b) those defendants give written consent to the acceptance of the offer.
• If the claimant alleges that the defendants have a several liability to the claimant, the claimant may—
  (a) accept the offer; and
  (b) continue with the claims against the other defendants if entitled to do so.
• In all other cases the claimant must apply to the court for permission to accept the Part 36 offer.

Question 14

CPR 36.16 - Restriction on disclosure of a Part 36 offer

Answer 14

• A Part 36 offer will be treated as “without prejudice except as to costs”.
• The fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the trial judge until the case has been decided.
• This does not apply:
  (a) where the defence of tender before claim has been raised;
  (b) where the proceedings have been stayed under rule 36.14 following acceptance of a Part 36 offer;
  (c) where the offeror and the offeree agree in writing that it should not apply; or
  (d) where, although the case has not been decided—
  (i) any part of, or issue in, the case has been decided; and
  (ii) the Part 36 offer relates only to parts or issues that have been decided.
• In a case to which paragraph (3)(d)(i) applies, the trial judge—
  (a) may be told whether or not there are Part 36 offers other than those referred to in paragraph (3)(d)(ii); but
  (b) must not be told the terms of any such other offers unless any of paragraphs (3)(a) to (c) applies.

Question 15

CPR 36.17 - Costs consequences following judgment

Answer 15

• this rule applies where upon judgment being entered—
  (a) a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer; or
  (b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer.
• (if it is a defendant’s offer) the court must, unless it considers it unjust to do so, order that the defendant is entitled to—
  (a) costs (including any recoverable pre-action costs) from the date on which the relevant period expired; and
  (b) interest on those costs.
• (if it is a claimant’s offer) the court must, unless it considers it unjust to do so, order that the claimant is entitled to—
  (a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
  (b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;
  (c) interest on those costs at a rate not exceeding 10% above base rate; and
  (d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is—
  (i) the sum awarded to the claimant by the court; or
  (ii) where there is no monetary award, the sum awarded to the claimant by the court in respect of costs—
  Amount awarded by the court Prescribed percentage
  Up to £500,000 - 10% of the amount awarded
  Above £500,000 - 10% of the first £500,000 and (subject to the limit of £75,000) 5% of any amount above that figure.
  In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including—
  (a) the terms of any Part 36 offer;
  (b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
  (c) the information available to the parties at the time when the Part 36 offer was made;
  (d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and
  (e) whether the offer was a genuine attempt to settle the proceedings.
• Where the court awards interest under this rule and also awards interest on the same sum and for the same period under any other power, the total rate of interest must not exceed 10% above base rate.
• does not apply to a Part 36 offer—
  (a) which has been withdrawn;
  (b) which has been changed so that its terms are less advantageous to the offeree where the offeree has beaten the less advantageous offer;
  (c) made less than 21 days before trial, unless the court has abridged the relevant period.

Question 16

CPR 40.3 - Drawing up of judgments and orders

Answer 16

• every judgment or order will be drawn up by the court unless—
  (a) the court orders a party to draw it up;
  (b) a party, with the permission of the court, agrees to draw it up;
  (c) the court dispenses with the need to draw it up; or
  (d) it is a consent order
• The court may direct that—
  (a) a judgment or an order drawn up by a party must be checked by the court before it is sealed; or
  (b) before a judgment or an order is drawn up by the court, the parties must file an agreed statement of its terms.
• Where a judgment or an order is to be drawn up by a party—
  (a) he must file it no later than 7 days after the date on which the court ordered or permitted him to draw it up so that it can be sealed by the court; and
  (b) if he fails to file it within that period, any other party may draw it up and file it.

Question 17

CPR 40.4 - Service of judgments and orders

Answer 17

Where a judgment or an order has been drawn up by a party and is to be served by the court—
(a) the party who drew it up must file a copy to be retained at court and sufficient copies for service on him and on the other parties; and
(b) once it has been sealed, the court must serve a copy of it on each party to the proceedings.
Unless the court directs otherwise, any order made otherwise than at trial must be served on—
(a) the applicant and the respondent; and
(b) any other person on whom the court orders it to be served.

Question 18

CPR 40.6 - Consent judgments and orders

Answer 18

• applies where all the parties agree the terms in which a judgment should be given or an order should be made.
• A court officer may enter and seal an agreed judgment or order if—
  (a) the judgment or order is listed in paragraph (3);
  (b) none of the parties is a litigant in person; and
  (c) the approval of the court is not required by these Rules, a practice direction or any enactment before an agreed order can be made.
  The judgments and orders referred to in paragraph (2) are—
  (a) a judgment or order for—
  (i) the payment of an amount of money (including a judgment or order for damages or the value of goods to be decided by the court); or
  (ii) the delivery up of goods with or without the option of paying the value of the goods or the agreed value.
• (b) an order for—
  (i) the dismissal of any proceedings, wholly or in part;
  (ii) the stay of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the order or elsewhere;
  (iii) the stay of enforcement of a judgment, either unconditionally or on condition that the money due under the judgment is paid by instalments specified in the order;
  (iv) the setting aside under Part 13 of a default judgment which has not been satisfied;
  (v) the payment out of money which has been paid into court;
  (vi) the discharge from liability of any party;
  (vii) the payment, assessment or waiver of costs, or such other provision for costs as may be agreed.
• The court may deal with an application without a hearing.
• Where this rule applies—
  (a) the order which is 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 or by the party if he is a litigant in person.

Question 19

CPR 40.7 - When judgment or order takes effect

Answer 19

A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.

Question 20

CPR 40.8 - Time from which interest begins to run

Answer 20

Where interest is payable on a judgment pursuant to section 17 of the Judgments Act 1838 or section 74 of the County Courts Act 1984, the interest shall begin to run from the date that judgment is given unless—

(a) a rule in another Part or a practice direction makes different provision; or
(b) the court orders otherwise.

Question 21

CPR 40.8A - Stay of execution or other relief

Answer 21

a party against whom a judgment has been given or an order made may apply to the court for—
(a) a stay of execution of the judgment or order; or
(b) other relief,
on the ground of matters which have occurred since the date of the judgment or order, and the court may by order grant such relief, and on such terms, as it thinks just.

Question 22

CPR 40.9 - Who may apply to set aside or vary a judgment or order

Answer 22

A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.

Question 23

CPR 40.11 - Time for complying with a judgment or order

Answer 23

A party must comply with a judgment or order for the payment of an amount of money (including costs) within 14 days of the date of the judgment or order, unless—

(a) the judgment or order specifies a different date for compliance (including specifying payment by instalments);
(b) any of these Rules specifies a different date for compliance; or
(c) the court has stayed the proceedings or judgment.

Question 24

CPR 40.12 - Correction of errors in judgments and orders

Answer 24

• The court may at any time correct an accidental slip or omission in a judgment or order.
• A party may apply for a correction without notice.

Question 25

CPR 40.13 - Cases where court gives judgment both on claim and counterclaim

Answer 25

• applies where the court gives judgment for specified amounts both for the claimant on his claim and against the claimant on a counterclaim.
• If there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount to pay the balance.
• In a case to which this rule applies, the court may make a separate order as to costs against each party.

Question 26

CPR 40.13A - County Court set-off of cross-judgments

Answer 26

• applies to applications under section 72 of the County Courts Act 1984 for permission to set off any sums, including costs, payable under several judgments or orders each of which was obtained in the County Court.
• Where the judgments or orders have been obtained in the same County Court hearing centre, the application—
  (a) may be made to that hearing centre on the day when the last judgment or order is obtained, if both parties are present; and
  (b) in any other case must be made on notice.
• Where the judgments or orders have been obtained in different County Court hearing centres, the application may be made to any of them on notice.
• The District Judge located at the hearing centre to which the application is made will—
  (a) forthwith stay execution on any judgment or order to which the application relates; and
  (b) notify any hearing centre that made the relevant judgments or orders of the stay.
• Where execution has been stayed under paragraph (4), any money paid into court under the judgment or order will be retained until the application has been disposed of and the court has directed how any money paid into court is to be dealt with.
• Paragraphs (7) and (8) apply where an order is made by the High Court giving permission to set off sums payable under several judgments and orders obtained respectively in the High Court and the County Court.
• The High Court will send to the County Court a copy of the order giving permission, and the County Court will deal with any money paid into court in accordance with that order.
• The court officer of the County Court will enter satisfaction in the County Court records for any sums ordered to be set off, and execution or other process for the enforcement of any judgment or order not wholly satisfied will issue only for the balance remaining payable.

Question 27

CPR 40.14 - Judgment in favour of certain part owners relating to the detention of goods

Answer 27

• In this rule “part owner” means one of two or more persons who have an interest in the same goods.
• Where—
  (a) a part owner makes a claim relating to the detention of the goods; and
  (b) the claim is not based on a right to possession,
  any judgment or order given or made in respect of the claim is to be for the payment of damages only, unless the claimant had the written authority of every other part owner of the goods to make the claim on his behalf as well as for himself.

Question 28

Tomlin Orders (see also CPR 40.6.2)

Answer 28

• A type of consent order
• Made up of 2 parts: (1) public part (order) and (2) confidential part (schedule) that contains the details of the agreement reached.
• Generally used either when the parties wish for agreed terms to be confidential or want to go beyond terms that the court could generally order.
• Still need the court’s approval and will have to apply to the court to have the order made.

Question 29

CPR 38.1 - What does not count as discontinuance

Answer 29

A claimant who—
(a) claims more than one remedy; and
(b) subsequently abandons his claim to one or more of the remedies but continues with his claim for the other remedies,
is not treated as discontinuing all or part of a claim

Question 30

CPR 38.2 - Right to discontinue a claim

Answer 30

• A claimant may discontinue all or part of a claim at any time.
• However—
  (a) a claimant must obtain the permission of the court if he wishes to discontinue all or part of a claim in relation to which—
  (i) the court has granted an interim injunction; or
  (ii) any party has given an undertaking to the court;
  (b) where the claimant has received an interim payment in relation to a claim, he may discontinue that claim only if—
  (i) the defendant who made the interim payment consents in writing; or
  (ii) the court gives permission;
  (c) where there is more than one claimant, a claimant may not discontinue unless—
  (i) every other claimant consents in writing; or
  (ii) the court gives permission.
• Where there is more than one defendant, the claimant may discontinue all or part of a claim against all or any of the defendants.

Question 31

CPR 38.3 - Procedure for discontinuing a claim

Answer 31

• To discontinue a claim or part of a claim, a claimant must—
  (a) file a notice of discontinuance; and
  (b) serve a copy of it on every other party to the proceedings.
• The claimant must state in the notice of discontinuance which he files that he has served notice of discontinuance on every other party to the proceedings.
• Where the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the notice of discontinuance.
• Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.

Question 32

CPR 38.4 - Right to apply to have notice of discontinuance set aside

Answer 32

• Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside.
• The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.

Question 33

CPR 38.5 - When discontinuance takes effect where permission of the court is not needed

Answer 33

• Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on him
• the proceedings are brought to an end as against him on that date.
• However, this does not affect proceedings to deal with any question of costs.

Question 34

CPR 38.6 - Liability for costs

Answer 34

• Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.
• If proceedings are only partly discontinued—
  (a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and
  (b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.
• This rule does not apply to claims allocated to the small claims track.

Question 35

CPR 38.7 - Discontinuance and subsequent proceedings

Answer 35

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if—

(a) he discontinued the claim after the defendant filed a defence; and
(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

Question 36

Jackson ADR - Making a Part 36 offer prior to proceedings

Answer 36

• Making a Part 36 offer alone may not be considered a reasonable attempt to use ADR prior to the issue of proceedings as it does not provide for the exploration of issues or option.
• However the fact that a Part 36 offer has been made might be part of a later argument in relation to a possible costs sanction.

Question 37

Jackson ADR - ‘subject to contract’

Answer 37

• Negotiations conducted entirely in writing, if successful, result in a written contract. Successful mediations and oral negotiations at least initially result in an oral agreement, which will be binding unless it has been agreed that a written agreement is essential.
• To avoid uncertainty, or to give the parties a little time to reflect before committing themselves, it is common to say an initial oral agreement is ‘subject to contract’.
• In these cases the parties are only bound when the contemplated document is signed.
• A subject to contract clause, or clause requiring a written contract, will apply unless the parties have expressly or impliedly agreed to vary or waive the clause, or if there is an effective estoppel or collateral contract.

Question 38

Jackson ADR - ‘full and final settlement’

Answer 38

• Where the whole dispute is settled the compromise agreement will normally be stated to be in ‘full and final settlement’ of the dispute. Care must be taken to ensure this is what the parties intend. It will mean the whole of the old dispute can no longer be litigated, and is replaced by the terms of the compromise.
• If the words are not used it may not be clear that the dispute has been fully settled, and one of the parties may then start or continue proceedings.

Question 39

Jackson ADR - Methods of recording settlement during proceedings

Answer 39

• settlement agreement
• judgment for immediate payment of an agreed sum together with costs
• judgment for an agreed sum (and costs), subject to a stay of execution pending payment by stated instalments
• informing the court that the case has been settled upon terms endorsed on counsels’ briefs
• informing the court that the case has been settled on terms recorded in a contract. This is appropriate where the terms are detailed, or where signed writing is required. The outcome of the proceedings must still be dealt with.
• entry of a consent order setting out the agreement in the form of undertakings. This is more suitable where the dispute is about non-monetary matters, such as a claim for injunctive relief, or specific performance, whether as final or interim relief.
• consent order staying all further proceedings upon the agreed terms
• consent order providing for ‘no order’ save as to costs, but setting out the agreed terms in recitals. This is more appropriate for non-money claims, and brings the proceedings to a conclusion other than quantifying costs.
• recording the agreement in a Tomlin Order: particularly useful where the agreed terms go outside the scope of the litigation, and in cases where the parties wish to keep the settlement terms confidential.

Question 40

Jackson ADR - Explanation of Tomlin Order

Answer 40

• In a Tomlin Order the court orders that further proceedings in the claim be stayed, except for the purpose of carrying out the terms of the compromise, those terms being set out in a schedule to the order or in a separate confidential schedule or agreement.
• The order will also provide for each party to have permission to apply to the court if necessary to compel compliance with the scheduled terms.

Question 41

Jackson ADR - what is usually found in the order part

Answer 41

• In accordance with the principle of open justice, any direction or imperative issued by the court has to be set out on the face of the order rather than being contained in the schedule.
• only three things are normally dealt with on the face of the order:
  (1) a stay of the proceedings, except for the purpose of carrying out the terms of the compromise as set out in the schedule
  (2) each party to have permission to apply to the court if necessary to compel compliance with the terms
  (3) the payment and assessment of costs

Question 42

Jackson ADR - Tomlin Order schedule

Answer 42

While it is technically part of the order, the schedule is a contract between the parties, and cannot be enforced directly, but requires an application to the court to carry its terms into effect.

Question 43

Jackson ADR - Advantages of Tomlin Orders

Answer 43

• the schedule does not have to be made public, so can include terms which the parties wish to keep confidential
• the schedule, unlike the order itself, is not limited to those orders that a judge has jurisdiction to make in the case
• the schedule is better suited to record long or complex terms, as it can be worded in a more flexible way than the order itself.

Question 44

Jackson ADR - Disadvantages of Tomlin Orders

Answer 44

• A possible drawback of a Tomlin Order is that enforcement powers for the terms of the schedule are more limited than for the court order itself.
• any application to vary the terms of the provisions on the face of the order will be governed by the CPR, which means the court can vary those terms if there has been a material change of circumstances.
• The terms in the schedule, however, are contractual, so can only be varied on the same grounds as any other contract, such as fraud, misrepresentation, or undue influence.

Question 45

Jackson ADR - Dealing with proceedings after consent order or Tomlin Order

Answer 45

• Entry of judgment: this ends the litigation with a clear winner. This is unlikely to reflect the intentions of the parties to a compromise.
• Discontinuing the claim: this ends the claim, but the claimant is required to pay the defendant’s costs unless specific provision is made to the contrary.
• Dismissing the claim: this ends the proceedings, but implies that the claim should never have been brought.
• Staying the proceedings: a stay is normally made for a set period, though it can be indefinite. This means that no further steps can be taken, but does not end the case. It may be appropriate where there is concern there may be problems in implementing the agreement.

Question 46

Jackson ADR - Methods of enforcing compromise agreements

Answer 46

• in adjudicative procedures such as arbitration the tribunal will make an award. Enforcement will often be through registering the award with the courts of the state where enforcement is to take place, and then enforcing the award as a civil judgment.
• in most non-adjudicative procedures, if the parties have resolved their dispute, they will have entered into a contract of compromise. Enforcement is through suing on that contract.
• alternatively in a non-adjudicative procedure the parties may agree to record all or part of the compromise agreement in a court judgment or order, and then enforce that judgment or order.
• settlements in ACAS-administered employment conciliations are enforceable in the County Court as if they were County Court orders.
• failure to comply with binding decisions in expert determinations and other ADR processes is enforced by suing on the contract where it was agreed the determination would be binding.

Question 47

Jackson ADR - Enforcement for judgment entered for immediate payment of sum agreed together with costs

Answer 47

Enforcement proceedings (by taking control of goods, charging order, etc) can be taken 14 days after judgment.

Question 48

Jackson ADR - Enforcement for judgment entered for the agreed sum (and costs), subject to a stay of execution pending payment by stated instalments.

Answer 48

If the instalments fall into arrears, the stay will be lifted, and the judgment creditor can then bring enforcement proceedings.

Question 49

Jackson ADR - Enforcement for consent order setting out the agreement in the form of undertakings

Answer 49

If any of the terms are not complied with, enforcement may be possible immediately or on application to the court depending on the nature of the term in question.

Question 50

Jackson ADR - Enforcement of Tomlin Orders

Answer 50

• Substantive terms in a Tomlin Order take effect and are enforceable as they stand without the need for any further court order.
• In the event of the scheduled terms being breached, enforcement is a two-stage process. First, the claim must be restored under the ‘permission to apply’ clause, and an order obtained to compel compliance with the term breached. A failure to comply with that order may be a contempt of court.

Question 51

Jackson ADR - Enforcement of a consent order staying all further proceedings on agreed terms

Answer 51

The courts are very unwilling to remove the stay imposed by this type of order, so enforcement can usually be effected only by bringing fresh proceedings for breach of the compromise contract.

Question 52

Jackson ADR - Enforcement of Consent order providing for ‘no order’ save as to costs, but setting out the agreed terms in recitals

Answer 52

Recitals in such a consent order may be enforced without the need to bring a fresh claim.