Full and in-depth structure and notes on settlement. A highly detailed and clearly written step-by-step approach to understanding and answering exam questions. The document breaks down each element you need to cover to answer a question on settlements. Contains extensive but easily comprehensible d...
Pre-Action Settlement:
(see pre-action structure for pre-action settlements and pre-action Part 36 offers)
Recorded in a contract
Settlements after the issue of proceedings:
Consent orders:
If parties come to an agreement, it is best to record the settlement in a formal manner such as a consent order as it will be
easier to enforce any terms of the agreement, including any costs for settlement, in enforcement proceedings if need be.
Formalities for the consent order:
Set out under r40.6(7):
1. The order which the parties have agreed must be drawn up with the exact terms which the parties have agreed.
2. It must be expressed as being ‘By Consent’
3. It must be signed by the parties legal representatives.
EXTRA:
Terms of a consent order are open to public inspection
Terms of the consent order must be within the courts powers to order
Tomlin Orders:
A Tomlin order allows parties who wish to keep the terms of the agreement confidential and so the agreed terms are set out in
a schedule to the order / separated annexed document / agreement. There will be some terms which still go into the order
itself but the confidential ones will go in the annexed document. Specifically, as per PD 40B para 3.5 – terms which relate to
payment of money out of court or payment and assessments of costs should go in the order, not the schedule.
A Tomlin Order is appropriate if the parties want terms to be confidential, or terms are beyond the powers of what the court
can order. To keep the settlement as confidential as possible, parties can record the settlement in a separate document which
the schedule refers to but which is not filed at court.
The formalities are set out under r40.6(7) –
a) The order agreed by the parties must be drawn up with the terms agreed
b) Must be expressed as being ‘By consent’
c) Be signed by the legal representative acting for each of the parties.
To make sure the agreement is enforceable, the court order should contain a term for liberty to apply and for the stay on
proceedings to be lifted so enforcement proceedings can occur.
Detail of what should go in the court order and what should go in the annexed schedule:
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