A more recent version of these Recording Settlements notes – written by City Law School students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Alternative Dispute Resolution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
RECORDING THE SETTLEMENT During the ADR process
? make sure clear on instructions as to bottom line and objectives
? take detailed notes
? make sure clear where agreement conditional on client approval
? remember: client ownership - whether and at what level to settle up to client ? best to have client present Who needs to be informed of settlement?
? client o clearly explain in writing to allow to understand details of agreement and regulate behaviour
o obtain client consent (if agreement subject to consent)
? only if proceedings have started the court (see below) How to record
? contractual principles apply to settlement agreement (1) when reach settlement = oral contract (2) write up agreed terms in fresh document, get parties to endorse (3) record the settlement (may be one or more): (a) contract / deed signed by both parties (b) exchange of letters (c) if proceedings issued + interim app interim order if relates to terms of interim app, so can take to judge for approval
(d) if proceedings issued consent order - terms recorded in court order by judge (e) endorsement on briefs by both clients and both counsel - if agreement is simple; NOT suitable if terms subject to client approval (N.B. endorsement is evidence of an oral agreement, NOT a contract in itself - only between client and counsel ?
don't rely on) Where proceedings have been issued
? MUST discontinue proceedings + inform court - several actions result in discontinuance:
(a) judge makes order in terms agreed through consent / Tomlin order (b) C files notice of discontinuance (only C can do so) i. costs consequences: C pays D's costs (unless CPR says otherwise)
ii. with court's permission, C can commence fresh proceedings re: same claim
(c) C requests that judge make order dismissing claim (= formal court decision that case should not proceed)
(d) judge stays proceedings
Buy the full version of these notes or essay plans and more in our Alternative Dispute Resolution Notes.