Discontinuance and settlement

Introduction

Discontinuance and settlement are procedural mechanisms within the Civil Procedure Rules (CPR) that allow parties in civil litigation to resolve disputes without proceeding to trial. Discontinuance refers to the cessation of legal proceedings by the claimant, governed by Part 38 of the CPR. Settlement involves the agreement between parties to resolve the dispute, often formalized through consent orders or Part 36 offers. Understanding these processes is critical for managing civil litigation effectively and is important knowledge for the SQE1 FLK1 exam.

Understanding Discontinuance in Civil Litigation

In the realm of civil litigation, discontinuance allows a claimant to halt their claim against the defendant. Governed by Part 38 of the CPR, it provides a formal mechanism to withdraw proceedings. This process is not merely an administrative step; it carries significant procedural and strategic considerations that can affect both parties.

Procedural Steps for Discontinuance

Discontinuance requires compliance with specific procedural requirements:

1. Filing Notice: The claimant must file a Notice of Discontinuance (Form N279) with the court. This notice must be served on all parties involved in the proceedings.

2. Service on Parties: After filing, the claimant must serve the notice on each defendant. Service ensures that all parties are formally aware of the discontinuance.

3. Timing Considerations:

   • Before Defense: If a defendant has not yet filed a defense or summary judgment application, the claimant may discontinue without the court's permission.

   • After Defense: If a defense has been filed, the claimant requires either consent of all other parties or the court's permission to discontinue.

4. Court's Permission: In certain circumstances, discontinuance cannot proceed without the court's approval, such as:

   • Cases involving a minor or a protected party.

   • Proceedings subject to interim injunctions.

   • Representative actions under CPR 19.7.

Costs Implications of Discontinuance

Discontinuance can have considerable cost consequences:

• Liability for Costs: Generally, the claimant is responsible for the defendant's costs incurred up to the date of service of the notice of discontinuance.

• Costs Orders: The court may issue a costs order against the claimant, requiring payment of the defendant's costs.

• Exceptions: In some cases, the court may depart from the general rule on costs if there are exceptional circumstances.

Strategic Implications of Discontinuance

Deciding to discontinue a claim involves strategic considerations:

• Assessment of Claim Strength: The claimant should evaluate the merits of the case. If new evidence weakens the claim, discontinuance might be prudent.

• Financial Considerations: Potential cost liabilities should be weighed against the benefits of proceeding.

• Impact on Future Actions: Discontinuance may affect the claimant's ability to bring a similar claim in the future.

• Negotiation Influence: Sometimes, the threat of discontinuance can be used as a tactic in settlement negotiations.

Consider the scenario of a business that initiated legal action but discovers new information undermining their position. Discontinuing the claim may save further expenses and resources, allowing them to refocus efforts elsewhere.

Exploring Settlement Options

Settlement allows parties to resolve disputes without the uncertainty and expense of a trial. It can be achieved through various means, each with its own procedures and implications.

Methods of Settlement

1. Consent Orders: Parties may agree to settle the claim and have the terms recorded in a consent order approved by the court. This order formalizes the agreement and can be enforced if necessary.

2. Tomlin Orders: A type of consent order where the detailed terms of settlement are contained in a confidential schedule. The order stays the proceedings except for the purpose of carrying out the terms of the settlement.

3. Formal Written Agreements: Parties may enter into a settlement agreement without involving the court. While this avoids additional court procedures, enforcement may require further action if one party defaults.

Part 36 Offers: A Tactical Approach

Part 36 of the CPR provides a framework for making settlement offers with specific cost consequences. Part 36 offers are strategic tools that can encourage settlement by creating financial incentives.

Key Features of Part 36 Offers

• Formal Requirements: A Part 36 offer must be in writing, expressly state that it is made pursuant to Part 36, and specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs if the offer is accepted.

• Cost Consequences:

  • If Accepted: The claimant is entitled to recover costs up to the date of acceptance.

  • If Rejected and Outcome is Less Favorable: If the offeree rejects the offer and fails to obtain a more favorable judgment, they may face adverse costs orders.

Strategic Use of Part 36 Offers

• Pressure to Settle: Making a well-calculated Part 36 offer can put pressure on the other party to settle due to the potential cost implications.

• Cost Protection: It can protect a party from adverse costs if the outcome at trial is less favorable to the other side.

• Timing: The timing of the offer is key. Early offers can demonstrate reasonableness and shift the cost risk to the opponent.

For example, a claimant might make a Part 36 offer early in proceedings, indicating willingness to settle and placing the defendant at risk of future cost liabilities if they proceed and fail to achieve a better result.

Alternative Dispute Resolution (ADR)

ADR encompasses methods of resolving disputes outside the traditional court process. The CPR encourages parties to consider ADR at various stages.

Common Forms of ADR

1. Mediation:

   • A neutral mediator facilitates negotiations between parties.

   • The process is confidential and without prejudice.

   • Any agreement reached is voluntary and binding once formalized.

2. Arbitration:

   • A private process where an arbitrator makes a binding decision.

   • Governed by the Arbitration Act 1996.

   • Offers a faster and often more flexible resolution than court proceedings.

3. Early Neutral Evaluation:

   • An independent evaluator assesses the merits of the case.

   • Provides parties with an objective viewpoint, which can help lead to settlement.

Encouragement of ADR by the Courts

• Costs Sanctions: Courts may impose costs penalties on parties who unreasonably refuse to engage in ADR.

• Overriding Objective: The CPR's overriding objective includes dealing with cases in ways that are proportionate and encourage settlement.

Think of neighbors embroiled in a property dispute opting for mediation. With the mediator's help, they reach an agreement that preserves their relationship and avoids the costs of litigation.

Practical Applications in Civil Litigation

Understanding discontinuance and settlement is important for effective legal practice.

Scenario Analysis

Consider a claimant who initiates proceedings but then learns of new evidence harming their case. They must decide whether to continue, risking adverse costs, or discontinue.

Strategic Decision-Making

• Evaluating Options: Assess the strength of the case, potential costs, and alternative dispute resolution methods.

• Client Advice: Provide clients with clear guidance on the risks and benefits of discontinuance or settlement.

• Procedural Compliance: Ensure all actions comply with CPR requirements to avoid unintended consequences.

Drafting Skills

• Notices and Orders: Accurately drafting notices of discontinuance, consent orders, and Part 36 offers is essential.

• Settlement Agreements: Crafting comprehensive agreements that protect clients' interests.

Conclusion

Discontinuance and settlement are essential components of civil litigation, offering mechanisms to resolve disputes efficiently and cost-effectively within the framework of the Civil Procedure Rules. Proficiency in these procedures enables legal professionals to manage complex litigation scenarios, make informed strategic decisions, and optimize outcomes for clients.

Understanding the interaction between procedural rules and strategic considerations is important. For instance, the decision to make a Part 36 offer involves analyzing potential cost consequences, the timing of the offer, and its impact on settlement negotiations.

These concepts are not isolated; they interact with other areas of civil procedure, such as case management and cost allocation. Familiarity with discontinuance and settlement procedures equips practitioners to handle litigation effectively, aligning with the CPR's aims of fairness, efficiency, and proportionality.