Settlement Flashcards
You are acting for Daisy, now aged 6, who is the intended claimant in a claim for personal injuries. The matter arises out of a road traffic accident last year, when Daisy was the passenger in the car. The intended defendant is the driver who collided with the car in which Daisy was travelling.
Proceedings have not yet been issued. A settlement, in the form of a one-off payment, is reached between the parties in respect of Daisy’s claim. Daisy suffered serious leg injuries, with fractures of the tibia and fibula which required surgery, hospitalisation for 2 weeks and rehabilitation with weekly physiotherapy. During the negotiations, you provided your solicitors with an opinion on the merits of the settlement and concluded that it is reasonable.
Instructing solicitors have prepared and gathered the following information to submit to the court seeking approval of the settlement: i. 1. the terms of the settlement for payment of damages of £18,000 (there is no ongoing future pecuniary loss); ii. 2. that the defendant admits liability; and iii. 3. details as to Daisy’s personal circumstances such as her age.
You are asked to advise as to the necessary procedure required to seek the court’s approval of the settlement and any further relevant documents the court is likely require in support.
What is the best advice to give to your client?
A Part 8 claim will be necessary and in addition to the above list it will be necessary to submit the litigation friend’s approval of the proposed settlement, Daisy’s medical reports, details of the circumstances of the accident and a schedule of past expenses.
A Part 8 claim will be necessary and in addition to the above list it will be necessary to submit the litigation friend’s approval of the proposed settlement, Daisy’s medical reports, details of the circumstances of the accident, a schedule of past expenses, and a copy of counsel’s opinion, containing instructions to counsel, as to the merits of the settlement.
The settlement can be approved by way of a consent order being filed with the court containing the terms of the settlement which the court will seal. In addition to the above list it will be necessary for the order to include the litigation friend’s approval of the settlement.
A Part 7 claim form with attached Particulars of Claim will be necessary and in addition to the above list it will be essential to submit the litigation friend’s approval of the proposed settlement, Daisy’s medical reports, details of the circumstances of the accident, a schedule of past expenses, and counsel’s opinion (with instructions) as to the merits of the settlement.
A Part 8 claim will be necessary and in addition to the above list it will be necessary to submit the litigation friend’s approval of the proposed settlement, Daisy’s medical reports, details of the circumstances of the accident, a schedule of past expenses, and a copy of counsel’s opinion, containing instructions to counsel, as to the merits of the settlement.
This is the best advice to give to your client. Approval of the settlement must be applied for using Part 8: see CPR rule 21.10(2). Part 7 is not appropriate.
Two neighbours are in a dispute concerning the boundary between their back gardens. Following a case management conference at which each party indicates an intention to mediate, the court stays the claim for one month to allow the parties to explore settlement. The parties subsequently mediate and agree terms of settlement. The settlement provides that each party will bear its own costs, the boundary between their back gardens will be as agreed at the mediation in a manner broadly favourable to the defendant, but in return the defendant agrees to transfer a strip of its front garden to the claimant.
How should the parties most appropriately record this agreement to give it legal effect?
Select one alternative:
The parties will not need to file any order at court because a settlement agreement will be sufficient.
The parties will not need to file any order at court because the agreement was reached during a stay of proceedings.
The parties will need to file an order at court, and it should be a Tomlin Order.
The parties will need to file an order at court, and it can be a (non-Tomlin) consent order.
The parties will not need to file any order at court because the agreement was reached during a mediation.
This question relates to ‘discontinuance and settlement’. In particular, this question is about recording a settlement reached at mediation where court proceedings have been issued. As court proceedings have been issued, those proceedings need to be concluded and some sort of court order is required. On these facts, a Tomlin Order is required, because the parties have agreed terms which go beyond the scope of the dispute, in particular redrawing the boundary to the front garden which was not part of the dispute.
Clinton Hart is bringing a claim for personal injury against Simon Malik. The claim arises out of a road traffic accident.
The case is issued in the High Court. Simon has admitted liability; the only matter in issue is the amount of damages. The case has been provisionally allocated to the multi-track and Directions Questionnaires are due to be filed next week. Clinton alleges that he has suffered permanent injuries, he cannot work, has mobility issues and needs a significant amount of care. Clinton’s medical evidence supports this and on full valuation the claim would be worth in the region of £1 million. Simon has made a Part 36 offer of £750,000. The relevant period is 21 days. This offer reflects Simon’s solicitor’s valuation of the claim as they feel that the care element of the claim is overvalued. The Part 36 offer was made 10 days ago and has not yet been accepted. Today, instructing solicitors have received an e-mail with an attachment. The attachment is a recording of Clinton playing football for his local football team during which he scores a goal with an overhead kick. There is no evidence of any injury. The sender is willing to provide a witness statement in support.
Advise the solicitors for Simon on the BEST course of action to adopt in relation to his Part 36 offer in light of the new evidence from the following options:
* Simon should immediately serve a notice of withdrawal. It would then be for Clinton to decide whether or not to serve notice of acceptance. If Clinton did serve notice of acceptance Simon should apply to the court for permission to withdraw the offer within 7 days of Clinton’s notice of acceptance. Simon would argue that the court should grant permission as there has been a change in circumstances since the original offer and it is in the interests of justice.
* As the relevant period has not expired, Simon’s Part 36 offer can only be withdrawn with the permission of the court. Therefore, Simon should apply immediately to the court for permission to withdraw the offer.
* Simon should do nothing.
* All Simon needs to do is serve a notice of withdrawal and it will take effect immediately.
- Simon should immediately serve a notice of withdrawal. It would then be for Clinton to decide whether or not to serve notice of acceptance. If Clinton did serve notice of acceptance Simon should apply to the court for permission to withdraw the offer within 7 days of Clinton’s notice of acceptance. Simon would argue that the court should grant permission as there has been a change in circumstances since the original offer and it is in the interests of justice.
Correct
Correct. Simon’s Part 36 offer of £750,000 is now very likely to be too high as the injury is worth less than the Part 36 offer (in the light of the evidence in the recording and Clinton playing football for his local football team during which he scores a goal with an overhead kick). As soon as Simon serves the recording evidence (or realises that Simon has it) Clinton may very well accept the offer. In order to prevent acceptance Simon needs IMMEDIATELY to serve a notice to withdraw the offer. Clinton then has a choice whether to accept the offer or allow the withdrawal to take effect. If Clinton does not accept the offer at that stage the offer will be withdrawn at the expiry of the relevant period. If Clinton does accept the Part 36 offer then Simon will need to apply to the court to withdraw the offer within 7 days of Clinton’s notice of acceptance (CPR 36.10).
Manchester Hospitals NHS Trust has recently instructed you in respect of proceedings, issued against it by Herbert, for damages for clinical negligence. On Friday last week, Manchester Hospitals NHS Trust served its defence within the correct time limits. The claim is likely to be allocated to the multi-track. Manchester Hospitals NHS Trust wants to make a Part 36 offer but wants it to be a time limited offer ie only open for acceptance for a specified period of time. It asks you for advice on whether it is possible to make a time limited Part 36 offer.
What ONE of the following is the BEST advice in these specific circumstances?
* No it is not possible to make a time limited offer. Once a Part 36 offer is made it cannot be withdrawn under any circumstances.
* Yes it is possible to make a time limited offer. The offer can be automatically withdrawn in accordance with its terms, at the end of a specified period of time. However, the time limit must be after the expiry of the relevant period.
* No it is not possible to make a time limited offer. You would have to withdraw the offer by serving notice of withdrawal.
* Yes it is possible to make a time limited offer. The offer can be automatically withdrawn in accordance with its terms. There can be a term which time limits the Part 36 offer. This time limit can be of any period including less than the relevant period.
- Yes it is possible to make a time limited offer. The offer can be automatically withdrawn in accordance with its terms, at the end of a specified period of time. However, the time limit must be after the expiry of the relevant period.
Correct
Correct. (CPR 36.9(4)(b)). Practically, this means that the Part 36 offer will state that it will be withdrawn by a set date or time, after the expiry of the relevant period, if it has not been accepted
Landsdown Limited (‘Landsdown’) is the claimant in a civil dispute. Gothic Limited (‘Gothic’) is the defendant. A trial is due to take place in 3 months’ time. The claim is for £500,000. Gothic has made an offer to Landsdown to settle the claim for £350,000. The offer was made pursuant to Part 36 of the CPR. Landsdown has rejected the offer.
The claim proceeds to trial. At trial, Landsdown is awarded £380,000. What is the impact of Gothic’s offer on costs?
* No effect. Landsdown will get its damages and it will also most likely get its costs paid by Gothic pursuant to the normal rules on costs (CPR 44.2).
* Landsdown will get its damages and a split costs order. Landsdown will have to pay Gothic’s costs until the relevant period expired. Thereafter, Gothic will have to pay Landsdown’s costs plus interest.
* Landsdown will get its damages and a split costs order. Gothic will have to pay Landsdown’s costs until the relevant period expired. Thereafter, Landsdown will have to pay Gothic’s costs plus interest.
* Gothic will most likely get its costs paid by Landsdown pursuant to the normal rules on costs (CPR 44.2).
- No effect. Landsdown will get its damages and it will also most likely get its costs paid by Gothic pursuant to the normal rules on costs (CPR 44.2).
Correct
Correct. The claimant (Landsdown) has won. Importantly, Landsdown has obtained more than the offer of £350,000 (it has been awarded £380,000). In other words it obtained a judgment ‘more advantageous’ than the defendant’s (Gothic’s) Part 36 offer. A split costs order would only be appropriate if Landsdown had won, but failed to obtain a more advantageous judgment than Gothic’s Part 36 offer eg if Landsdown had been awarded £340,000.
Where judgment against the defendant
Where judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer, which of the following IS NOT one of the stipulated consequences (the consequences apply unless the court considers it unjust).
* All the other answers are consequences.
* C is awarded an additional amount based on a percentage of the award.
* C is awarded interest on the award at a rate not exceeding 10% above base rate for some or all of the period from the expiry of the relevant period.
* C is awarded interest on costs from the end of the relevant period at a rate not exceeding 10% above base rate.
* C is awarded costs from the end of the relevant period to be assessed on the indemnity basis (in contrast to the usual basis - the standard basis).
- All the other answers are consequences.
C has brought a breach of contract claim against D seeking damages of £140,000. 4 months before trial, D makes a Part 36 offer of £110,000. C does not accept this. At trial, C is awarded damages of £100,000. What is the likely impact of the Part 36 offer, if any?
* C will get its damages and a split costs order. C will have to pay D’s costs until the relevant period expires. Thereafter, D will have to pay C’s costs plus interest.
* C will get its damages and a split costs order. D will have to pay C’s costs until the expiry of the relevant period. Thereafter, C will have to pay D’s costs plus interest.
* D will most likely get its costs paid by C pursuant to the normal rules on costs (CPR 44.2).
* No effect. C will get its damages and it will also most likely get its costs paid by D pursuant to the normal rules on costs (CPR 44.2).
- C will get its damages and a split costs order. D will have to pay C’s costs until the expiry of the relevant period. Thereafter, C will have to pay D’s costs plus interest.
Correct. A split costs order is appropriate because C has won, but failed to obtain a more advantageous judgment than D’s Part 36 offer. The costs are therefore ‘split’ as set out in this answer, and D is also awarded interest on those costs. Note, this is the result, unless the court considers it unjust.
