Getting the Order right

Whilst I can appreciate that when you get to the end of the case, you are keen as a fee earner to get the file boxed off to me for preparation of a Bill of Costs, and getting some hard earned money in, it is vital to get the terms of settlement right.

It sounds simple.

Yet so many get it wrong.

Settlement can be on the basis of acceptance of  a Part 36 Offer, which has automatic costs consequences. This is the simplest form of settlement, requiring notification being given to the other side and court that the offer is acceptable and that proceedings be stayed pending payment.

Settlement can be by way of Consent  Order or Tomlin Order, and this should be straightforward, but get it wrong, and the consequences are horrendous.   A District Judge has very little authority to amend a sealed Consent Order (see Weston v Dayman [2006] EWCA Civ 1165), and in essence, it could lead to a negligence action or loss of those hard earned costs.

Don’t forget, relief from sanctions are also more fraught with danger in a post Mitchell world.

If in doubt, don’t be shy and ask us to check before lodging.

 

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Offer & Acceptance

I have long held the view that where a part 36 offer is made and payment is received for the amount offered, then there is a concluded agreement. This view has been unchallenged until recently when my opponent decided to argue that there was no concluded agreement and that we were not entitled to costs.

 

Consideration of case law appears limited. On the one hand is Moriera v Grinch where HHJ Stewart spent a long time on the point and found that a claim for liquidated damages and a cheque being received does not amount to entitlement to costs, whereas in Bessant v Breheny, the Judge gave short shrift to the argument, the difference being was that the offer was made pursuant to CPR 36.

 

Low and behold, my belief was restored when the DJ confirmed that a cheque is a written document and so can be construed as acceptance in writing of a part 36 offer. The deciding factor is if there is any correspondence immediately afterwards indicating otherwise, then the answer may be slightly different..

 

Moral of the story is get the offer and basis of settlement right at the time.