Determination of Matters without Trial

Question 1

The claimant has claimed damages of $1,300,000 and made an offer to settle for $1,000,000.

The Defendant does not accept the offer.

The court awards $1,200,000.00.

What is the consequence of the Defendant’s refusal?

Answer 1

This sum is more than the sum offered by the claimant.

The impact of the part 35 offer may be felt as the Court may order that Defendant pay enhanced interest.

Question 2

What happens if there is late acceptance of a Part 35 Offer?

Answer 2

where a defendant’s offer to settle is accepted late, the extent of the penalty as to costs may be affected

Question 3

What are the grounds for an Application to set aside a judgment obtained for failure to attend?

Answer 3

The Affidavit evidence must show good reason for the failure to attend and that had the party attended “some other judgment or order might have been given or made”

Question 4

Under Part _____ of the Rules

Payment into court in support of an Offer to Settle is optional.

Would you recommend this? Why or why not?

Answer 4

Part 36;

Question 5

What must an offer to settle include?

Answer 5

• must state the sum proposed
• must state whether the sum proposed is in settlement of the whole or part of the claim
• must state if the sum is inclusive of interest and costs
• if inclusive of interest and costs must state the amount for each
• must be made without prejudice
• must reserve the right to disclose the contents of the letter to the court after judgment is given with regard to the issue of interest on damages or costs, as the case may be
• must state the date by which the offer expires
• expiry date must not be less than 21 days

Question 6

Can a Notice of Discontinuance be set aside? If so, why and how?

Answer 6

Yes;

on an application made within the time specified by the Rules.

on the basis that it amounts to an abuse of the process of the court; the grounds are not limited

Question 7

How are the costs to be paid by a claimant who unreasonably refuses to accept an offer calculated?

Answer 7

Costs are calculated from the last date the offer was open for acceptance

Question 8

What differences between a Claimant’s offer letter and a Defendant’s offer letter must you bear in mind?

Answer 8

The Claimant’s letter reserves the right of disclosure to the court to protect its right to interest on damages while the Defendant’s letter reserves the right of disclosure to the court to protect its right to costs

The Defendant’s offer should be 1.18 more than the amount claimed to be an effective offer

Question 9

To be an effective bar to future proceedings, what two elements of the settlement must be satisfied?

Answer 9

There must be both accord (agreement to settle in full) and satisfaction (performance of the agreement by the party seeking to bar the future proceedings)

Question 10

True or False.

a payment into court must be made in support of an offer to settle

Answer 10

False.

the payment into court is optional, and an attorney can consider whether there is any benefit to supporting the offer with a payment into court.

Question 11

What are the consequences of non-appearance at Trial?

Answer 11

Striking out?

Question 12

In calculating the Defendant’s Offer, the rule of thumb in calculating the offer amount is to offer a sum at least ________ times the expected award.

Answer 12

1.18

Question 13

the case of an offer by the _____________; the __________ may be required to pay enhanced interest on any award of damages (at a rate that might be higher that that available on an ordinary claim for damages)

Answer 13

Claimant; Defendant

Question 14

if a judgment is obtained against your client in his absence, what can you do?

Answer 14

Make an Application to set aside the judgment

Question 15

what is manner of challenging a final consent order

Answer 15

by appeal or fresh proceedings

Question 16

In what circumstances can stays of proceedings result in a claim coming to an end?

Answer 16

Security for costs -
a claim is stayed pending the payment by a Claimant of security for costs ordered by the court. The Stay is intended to be temporary but if the security is not provided within the time ordered, the stay comes to an end and the claim is instead struck out.

Pending payment of costs -
When a second claim is brought in relation to the same facts and a stay is filed pending payment of costs of the first claim, the stay is intended to be temporary to force the payment of the relevant costs - if the costs are not paid the stay is permanent and the D may apply to strike out.

As a means of settling a claim -
i.e Tomlin Orders

Question 17

In the case of an offer by the ___________, the __________ may be required to pay costs if although succeeding on liability has not obtained a remedy that would suggest that the offer was reasonably refused

Answer 17

Defendant; Claimant

Question 18

What happens if non-attendance is a consequence of the party receiving no notice of the trial?

Answer 18

The judgment is a nullity that can be set aside as of right (without having to establish anything but the lack of notification)

Question 19

The claimant has claimed damages of $1,300,000 and made an offer to settle for $1,000,000.

The Defendant does not accept the offer.

The court awards $900,000.00.

What is the consequence of the Defendant’s refusal?

Answer 19

The sum is less than that sum offered by the Claimant.

The impact of the part 35 offer will not be triggered and interest will be paid based on the usual principles

Question 20

How does a Tomlin order allow for enforcement without the need for fresh proceedings?

Answer 20

If breached, the matter is restored under the ‘liberty to apply’ and an order made to compel compliance.

Question 21

What are the consequences of non-appearance at Case Management or Pre-Trial Review?

Answer 21

The Court may strike out the statement of case of a party that does not attend the CMC and the PTR

Question 22

What part of the Rules deal with Offers to Settle

Answer 22

Part 35

Question 23

The Tomlin Order usually have the following -

Answer 23

‘And the claimant and the Defendant having agreed to the terms set out in the annexed schedule, it is ordered that all further proceedings in this action be stayed, except for the purpose of carrying such terms into effect. Liberty to apply as to carrying such terms into effect.’

Question 24

who is liable for costs on discontinuance of a claim?

Answer 24

usually the claimant is liable for costs of the claim a discontinuance is the claimant’s act implying that for some reason he/she does not wish to proceed. In effect, the claimant is conceding that he/she has lost or cannot win his/her claim

Question 25

What part of the Rules deals with Discontinuance?

Answer 25

Part 37

Question 26

The claimant has claimed damages of $1,300,000 and the Defendant made an offer to settle for $1,000,000.

The Claimant does not accept the offer.

The court awards $1,200,000.00.

What is the consequence of the Claimant’s refusal?

Answer 26

The sum is more than the offer.

The impact of part 35 is not triggered. Costs will follow the event entirely.

Question 27

Does discontinuance act as a bar to future proceedings?

Answer 27

it ordinarily does not bar future proceedings on the same issues between the same parties as there is usually no determination of the dispute.

It can where discontinuance is filed in the context of a settlement agreed by the parties

Question 28

True or False.

Where the issues raised in a claim are identical to those raised in an earlier claim, there is an absolute bar to the later proceedings, unless fraud or collusion is alleged.

Answer 28

True.

Question 29

Part 36 lists three circumstances in which a payment to the court can be made. Discuss each circumstance

Question 30

In what circumstances is leave required to discontinue an action?

Question 31

The claimant has claimed damages of $1,300,000 and made an offer to settle for $1,000,000.

The Defendant does not accept the offer.

The court awards $1,000,000.00.

What is the consequence of the Defendant’s refusal?

Answer 31

This sum is equal to the sum offered by the claimant.

The impact of the part 35 offer may be felt as the Court may order that Defendant pay enhanced interest.

Question 32

The claimant has claimed damages of $1,300,000 and the Defendant made an offer to settle for $1,000,000.

The Claimant does not accept the offer.

The court awards $1,000,000.00.

What is the consequence of the Claimant’s refusal?

Answer 32

This sum is equal to the sum offered by the Defendant.

The impact of part 35 is not triggered and costs will follow the event in its entirety.

Question 33

How does a Tomlin order allow for enforcement without the need for fresh proceedings?

Answer 33

If breached, the matter is restored under the ‘liberty to apply’ and an order made to compel compliance.

Question 34

What is the impact if part 35 offer in settlement of the whole claim is accepted?

Answer 34

Where an offer in settlement of an entire claim is accepted, the general impact is that the claim is stayed on the terms of the offer.

Question 35

What, if any, is the impact of an Attorney being present at a trial where his client is absent?

Answer 35

It was suggested that the court ought not to strike out a claim for non-attendance if the attorney attends. Instead, the appropriate course is to proceed with the trial, though clearly, the party by not attending would have significantly disadvantaged himself/herself.

Question 36

How is discontinuance of action effected without leave?

Question 37

The claimant has claimed damages of $1,300,000 and the Defendant made an offer to settle for $1,000,000.

The Claimant does not accept the offer.

The court awards $840,000.00.

What is the consequence of the Claimant’s refusal?

Answer 37

The sum is less than 85% of the offer.

The impact of part 35 is triggered. Costs may not follow the event. The court may order that although he was successful the Claimant pay the Defendant’s costs from the latest date on which the offer could have been accepted without the court’s permission.

Question 38

if the court awards _________ of the offer, the claimant may be ordered to pay costs from the last date the offer was open for acceptance.

Answer 38

less than 85%

Question 39

When is a Tomlin Order tool?

Answer 39

where the terms of the settlement are complex,

where one wishes to avoid publicizing terms of settlement, yet still having an enforceable agreement

the issues being addressed in the settlement go outside the boundaries of the claim.

Question 40

What is a stay of proceedings? Does it bring a matter to an end?

Answer 40

A stay of proceedings usually does not bring an end to the proceedings

Question 41

Can a Part 35 offer be disclosed to the court? what are the consequences of disclosure?

Answer 41

The rules require that part 35 offers be kept confidential from the court until all questions of liability and quantum (other than costs and interest) have been decided.

if disclosure is made, the proceedings may continue if the court is satisfied that to do so would not be prejudicial