Topic 8: Discontinuance, Dismissal, and Offers to Settle

Question 1

Topic 8: Discontinuance, Dismissal and Offers to Settle

Answer 1

Requires actions by either parties.

Question 2

Discontinuance and Withdrawal

Answer 2

Occurs where a client does not want to continue anymore but there are costs they need to pay.

Where they discontinue, the other side has spent money.

If before the defence has been filed, then you do not require consent.

If after the defence has been filed, the Dft’s consent is required.

Question 3

Discontinuance and Withdrawal: By Pft or Applicant

Answer 3

If the Dft has not filed and serves a defence and the Pft changes their mind, the Pft can stop without having to pay the other side. If the Pft waits too long, then they will have to pay the Dft.

Where the Dft has filed and served, Dft’s consent and leave of the court is required.

Question 4

Notice of Discontinuance

Answer 4

A notice of discontinuance is where the pft has not been served with the first defence yet and only the Pft needs to sign the notice of discontinuance.

Signature required from Dft where the defence has been filed and served.

It does not end legal rights, but just closes the court file. it is not a judgement in court.

Question 5

Discontinuance: Consolidated proceedings and counterclaims

Answer 5

The Pfts discontinuance of a proceeding does not prejudice a proceeding with or ot a counterclaim made by the dft.

Question 6

Discontinuance by the Dft

Answer 6

A Dft may discontinue a counterclaim or withdraw part of it before being served with the Pfts answer to the counterclaim and only with the court’s leave or consent of the other parties after being served with the Pfts answer.

Question 7

Costs

Answer 7

A party who files a discontinuance will be liable to pay the costs of the other side up until the time of withdrawal/discontinuance.

Question 8

Notice of Discontinuance or withdrawal

Answer 8

A discontinuance or withdrawal, for which leave of the court is not required, may be effected by filing a notice in the approved form and serving it as soon as practicable on the other side.

Where Courts leave is required, it is affected by the order giving leave and a notice of discontinuance or withdrawal is not required.

Question 9

Discontinuance: Subsequent proceeding

Answer 9

A discontinuance or withdrawal is not a defence to another proceeding on the same ground.

A party who is served with the other party’s NOTD may continue with the proceeding as if the other party’s NOTD has not been filed.

Question 10

Discontinuance: Stay pending payment of costs

Answer 10

Where the court has made an order that you must pay costs, the matter will be stayed until it is paid.

Question 11

Continuation of proceeding after delay

Answer 11

A step is something moving the matter forward.

If no step has been taken for 1 year from the last step, a party who wants to proceed must gives a months notice to every other party of their intention to proceed.

If no step has been taken for 2 years from the last step, a new step may not be taken without an order from the court made with or without notice.

• the other party can make an application to strike you out

Question 12

Default by Pft

Answer 12

Where the Pft fails to comply with orders of the court within a stated amount of time, then the Dft may apply to the court for an order to dismiss the proceedings.

Question 13

Offers to Settle

Answer 13

Offers to settle can happen at anytime during the proceeding until the judgement is handed down.

Question 14

Purpose of Offer to Settle

Answer 14

• Keep things out of the court because of inherit risk
• Ensures there is no appeal due to finality
• It’s an opportunity to get a resolution that may not be awarded by the court.

Question 15

Offer Accepted or Rejected

Answer 15

An offer accepted is great, but an offer rejected can be used for the case.

You want to express to your client the best and worst case scenario, being:

You get an offer for 30K

Best case: You sue for 50k and get it. You pay the lawyer 15k and the other side pays you additional 7k. The end result is 42k.

Worst Case: You sue for 50k but lose. You pay 15k to lawyer and pay the other sides costs in 7k. The end result is negative 22k.

Now the offer for 30K is looking much better.

Question 16

Offer By Agreement/Without Prejudice

Answer 16

“Without Prejudice” provides a safe space for parties to speak freely and not have their conversion disclosed in court.

Just labeling something “without prejudice” does not mean it is.

If it’s about negotiating settlement, then it is “without prejudice”

Question 17

Calderbank Offers

Answer 17

Add “without prejudice” with “save as to costs”. Therefore, we can use it for the purpose of costs, not for liability or for quantum. But when it comes to who should pay what costs, you can use it.

Calderbank offers allow the court to consider offers made “without prejudice” by the parties prior to final determination by court.

Its offers to settle without prejudice as to the matters of trial relevant to costs.

E.g. The claim was for 50K and the dft offered 35K. Pft rejected the offer and the court ordered 30k. In hindsight, the Pft should have accepted the Dft’s offer of 35K. Therefore, the Dft is only liable to pay the Pft costs from the beginning until their offer was made.

In some cases, the winner will have to pay the costs of the Dft from the settlement offer.

Question 18

Enforcement of Settlement

Answer 18

Where an offer was made for 35k and accepted but it was not paid, then you compromised your client’s claim and only are entitled to claim 35k.

Question 19

Formal Offers to Settle

Answer 19

1. Must state a time frame that the offer is open for acceptance ending no less than 14 days from service.
2. Must say it is an offer made under Chapter 9 Part 5 UCPR
3. The offer can only be made in writing

Question 20

Cost consequences: Pft

Answer 20

Where the Pft makes an offer to the Dft and the Dft rejected it and the Pft wins (beating the offer), then they will get an increase in their costs to indemnity costs.

e.g. You spent 70k to get to hearing. On scale, you might only get 1/3 of the costs back. Indemnity means the full 70k.

Question 21

Cost consequences: Dft

Answer 21

If an offer is made by the Dft half way through and the Pft rejects it and won, the offer should have been accepted.

Under normal circumstances, when the Pft wins, the Dft would pay their costs on a court scale basis.

However, if the Dft offered half way through, they may argue they only have to pay costs up until the offer to settle was made.

Therefore, the Pft pays the Dft’s costs on scale after the rejection until the trial.

Question 22

Time for Offering

Answer 22

An offer can be served at any time prior to the verdict.

Question 23

Withdrawal or end of Offer

Answer 23

A party must specify in an offer a settle period ending no less than 14 days after the day of service. It may not be withdrawn within the 14 days without the court’s leave.

You can have two offers running at the same time and accept one when you had made one.

You can apply to the court for leave to withdraw

When it’s expired, you can write to the other party asking them to reopen it if they want to but you can’t force them to.

Question 24

Disclosure of offer

Answer 24

As an offer is without prejudice, it cannot be disclosed in court. The only time it can be used is when referring to the offer in court material when making an application for leave to withdraw it.

Question 25

Acceptance of Offer

Answer 25

The offer is only accepted by serving written notice.

The offer to settle does not lapse on the making of a counteroffer. it is 14 days irrespective of a counter offer.

Question 26

Costs if offer to settle by Pft

Answer 26

If there has been an offer by the pft, the dft rejects and on hindsight they should have accepted, then the costs calculated are on indemnity. The dft must pay for all costs.

Question 27

Costs if offer to settle by Dft

Answer 27

If there has been an offer by the Dft, the Pft rejects, the Pft wins but less or the same as the offer, on hindsight they should have accepted it, then the pft must pay costs for court scale.

Question 28

Interest after service of offer to settle

Answer 28

Where the court gives judgement for the pft for recovery of debt or damages, they include interest or damages in the nature of interest or the court awards the pft interest or damages in the nature of the interest.

The court must disregard the interest or damages in the nature of interest relating to the period after the day of service of the offer to settle.

Question 29

Failure to comply with offer

Answer 29

Where a party does not comply with the offer settled, the other party may elect to:

• Apply to the court for judgement on conditions of the offer
• continue with the proceeding as if an offer to settle had not been accepted.

Question 30

Deeds of Settlement & Notice of discontinuance

Answer 30

If you settle through formal offers, it is treated as an agreement between the parties. Your legal rights will end as a result.

However, if the offer resulted from an informal agreement, you need to formalise it through judgement by consent or a settlement deed.

You can release the claim and put a bar on proceedings so that they can’t sue for something already settled.

Notice of discontinuance does not end the legal right.

Question 31

Dismissal for want of prosecution

Answer 31

“want” means lack of

where the dft makes application against the pft where they have no followed through in a timely matter and apply for dismissal.