It ain't over 'til the DJ sings

It's not just England fans who are overfamiliar with Kenneth Wolstenholmes' cry of "they think it's all over". By some curious coincidence, it is the same cry that wafts across the bench to district judges day in and day out, as parties try to wriggle out of their impending attendance.

All too often they write in saying the claim has been 'settled' (commendable), the claim is 'withdrawn' (less so) or a consent order is filed providing for the claim to be 'discontinued' (ditto). Or, as recently requested, 'please ignore the hearing that is listed for'¦' (tempting, but no).

While you may think that this is just the out-of-touch rambling of an old fool detached from reality (rhetorical) it is important to ensure proceedings are properly concluded, not only because the CPR require it but because of the potential consequences if you do not.

Invalid process

It is noticeable that parties often write to the court, invariably just before trial, indicating that as they have settled, the trial is no longer necessary and the date can therefore be vacated. That is not a process that will validly bring the litigation to an end, and, even though as a matter of expediency the court may sometimes refer to the date having been 'vacated', it does nothing for the proceedings themselves and perhaps the proper '“ and maybe only '“ course the court can follow is to strike the claim out. Not to dismiss, as that can only follow a hearing of the merits or the evidence. Striking out the claim may well have costs consequences for the claimant in those circumstances and similarly a request to 'withdraw' is not a procedure recognised by the CPR and so will not effectively bring the claim to an end and leaves the issue of costs very much alive.

Nor is simply doing nothing a real option '“ discourtesy whether professional or otherwise apart. Maybe the parties agree as confirmed in correspondence that the court does not no need to be troubled.

But there may be, for example, outstanding case management directions that could, if ignored, lead to a striking out and an entitlement to costs that would upset the negotiated applecart as would a failure to pay certain court fees that could end in the same result. Or indeed there might be an 'old fool detached from reality' (still rhetorical) sitting in a court room waiting for you to appear. I leave it to you to assess the risk of relying on the agreed position as set out in correspondence and draft the letter of explanation to the client.

Consent required

So, other than by a judgment or order after a trial or hearing, how can proceedings be brought to an end?

The obvious answer is by consent order. However, simply because the parties have agreed a form of order the court is not duty bound to approve it; whether by consent or otherwise it remains an order of that court.

So, for example, the drafting must be clear and unambiguous and free of internal contradictions. And, importantly, just because the parties agree to a course of action, that agreement will not allow the court to order beyond its jurisdiction and the traditional way around that, or to preserve a measure of confidentiality, is the Tomlin order. This must be drafted in two parts: the operative order itself and the schedule setting out the terms and the two should not be confused or muddled.

For example, provision for costs in the schedule is not an authority to assess '“ it is not an order and including the provision for relief from forfeiture in the schedule may leave the tenant outside in the rain without an enforceable order.

Of course the court can be asked to adjourn the proceedings generally. This may be appropriate where either party is awaiting the outcome of an agreed set of steps, perhaps payments or completion of items of work, but cannot be an appropriate way to bring proceedings to a final conclusion. Staying proceedings may be more appropriate in those circumstances, particularly where the conditions one party has to meet are more long term, perhaps to be followed by a dismissal on completion of those terms.

Ending it all

CPR 38.2 provides that, except in the special circumstances set out in 38.2(2), when permission is required a claimant may discontinue all or part of a claim at any time, and, where there is more than one defendant, the claimant may discontinue all or part of a claim against all or any of the defendants.

Rule 38.3 sets out the procedure and 38.6 the liability for costs. While the general position is that a discontinuing claimant will be liable for the defendant's costs, an application can be made for some other order, the burden being on the claimant to show why. Equally, it is possible for the parties to agree that, notwithstanding the general rule, in consideration of the claimant serving a notice of discontinuance the defendant will not seek costs and, although a court cannot order a party to discontinue, an order can be sought which recites the notice and provides for no order for costs.

It is important therefore to get it right for both professional and practical reasons and the CPR are clear as to how that is to be done and if followed correctly the proceedings will have properly been brought to an end and the parties' costs positions protected.

So, is it all over? It is now.