Litigation tactics

'Another case in the bag,' you breathe silently as you settle that vexed case that has been troubling you for months. However, there are still hazards to avoid if you want to ensure that the compromise has been properly recorded in an effective consent order. Because consent orders are often sealed by court officers, without judicial scrutiny, it is all the more important to ensure that they are drawn up properly.

The starting point for the procedure for drawing up and issuing a consent order is r 40.6, Civil Procedure Rules 1998 (CPR) and its corresponding practice direction, s 3, PD 40B. They amount to a mainly mechanical system that standardises High Court and County Court practice. It is all very simple, so what could possibly go wrong?

Unfortunately, it is only too common to see an order that has not been signed by both parties or one which fails to provide specific dates and times for compliance. A solicitor recently lodged a consent order in favour of his successful client awarding all the spoils to his opponent by carelessly mixing up 'defendant' with 'claimant'. Fortunately for him, his opponent consented to amend his slip after a little (red-faced) prodding.

Common errors

Other common errors include:

• Asking for an order that the court should only make after an approval hearing (where, say, one of the parties is a child or a patient or in a housing possession case).
• Forgetting to provide for the payment out of monies in court and interest on it.
• Putting in the schedule to a Tomlin order something that should be in its body, such as an order for payment out of monies in court, or for costs. The court has no authority to make a payment out unless directed to do so in the body of an order. Likewise, no one can commence a detailed costs assessment without the authority of a court order. The schedule to a Tomlin order should only record the terms of a contractual agreement between the parties and would have to be converted into a judgment by a costly application.
• Putting into the body of a Tomlin order what should be in the schedule such as a term that is agreed, but is outside the powers of the court to make or outside the scope of the proceedings. The parties may, for example, agree that the defendant will provide the claimant with an apology. However, the court has no jurisdiction to make such an order '“ even by consent. It must go into the schedule.
• Failing to provide for interest in default. Unless the terms for payment of money
• are embodied within the body of the order there is no right to statutory interest (s 17, Judgments Act 1838).
• Using absurd or meaningless phrases in the body of an order: for example, 'the claimant shall be at liberty to accept the sum of £X in settlement' (how then can the court force a defaulter to make the payment?); or 'the record shall be removed' (what record, and who is to remove it?).
• Failing to limit the terms of settlement. It is important to confine the settlement to the matters in issue in the proceedings. Settling claims 'in full and final settlement of all claims the claimant may have against the defendant' might accidentally compromise a wholly independent claim or a collateral claim that you do not know about (for example, a claim for insured losses in a running down claim).
• Creating ambiguity '“ how are claims against other defendants or additional claims going to be dealt with? Are the terms clear and precise?

If you make a mistake, a consent order may only be set aside in exceptional circumstances where, say, it is vitiated by mistake or fraud. The procedure for seeking a set-aside is by no means clear. The most effective method is by issuing fresh proceedings. If the court has made a final judgment or order, it no longer has jurisdiction to deal with a further application and it is uncertain whether a Tomlin order staying proceedings on terms prevents the same court from dealing with such an application.

The court may rectify a genuine and obvious slip under r 40.12 of the CPR. You might also be able to apply to convert a term of a Tomlin order schedule into an enforceable judgment even though this might extend well beyond the scope of the original claim (EF Philips and Sons v Clarke [1970] Ch 322).

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