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Compromise & Settlement Cheat Sheet (DRAFT) by

Order 70 Rules of the Supreme Court

This is a draft cheat sheet. It is a work in progress and is not finished yet.

GENE­RAL

Compro­mis­e/S­ett­lement
Form of RESOLUTION usually in the form of a contra­ctual agreement enforc­eable by law between the parties in dispute which brings the dispute to an end.
Governed by Contract Law Binding on both parties - Court views as final decision (Elkind v Bennet). MUST be Offer, Accept­ance, Consid­era­tion.
NO ADMISSION REQUIRED
Court prefer­s/e­nco­urages that the matters be settled out of Court.

POWER TO COMPRO­MISE

When can you Compro­mis­e/S­ettle
Any time afte the issuance of the Origin­ating Procee­dings and before end of trial. Green v Rozen
WHO: Attorney as AGENT has implied and ostensible authority.
Implied
Between attorney & client to compromise the suit without reference to the client as long as it does not involve matters "­col­lateral to the action­"
Ostensible
Between attorney and opposing litigant to compromise without actual proof of authority. Waugh v HB Clifford & Sons Ltd.

APPR­OVAL

No approval from Court necessary (save for except­ions) Noel v Becker

MATTERS THAT NEED COURT APPROVAL

1. Persons under a disabi­lity. (minors and/or patients)
2. Actions concerning the Estate of a deceased person
3. Actions by repres­ent­ative parties
4. Defamation Actions
 

ADVA­NTA­GES

1. In public Interest as less case load on the Court
2. Save Costs (no trial or shorter trial)
3. Settle on their own terms
 

DISA­BILITY - EXCEPT­ION

Order 70
WHO - O70 R1
(1) Minor / Infant (3) Patient
Patient - O79 R1
A person incapable of managing and admini­stering his property and affairs. Mental Health Act
Minor
Anyone under the age of majority (18)
Rules of Compromise & Settlement -O70 R8
Personal Injuries and Fatal Accidents
General Rule
Patient or Minor must have a Personal Rep. who is not under disability to conduct procee­dings on his behalf.
Patien­t/Minor is Plaintiff
Next Friend
Patien­t/Minor is Defendant
Guardian ad Litem
Next Friend and Guardian ad Litem must act by an attorney O70 R2(3)
Compromise Rule - O70 R8
NO Compromise or Settlement without the approval of the Court allowed
Court Considers
If the Settlement is reasonable and if it is for the benefit of the Patien­t/Minor
Applic­ation
Summons & Affidavit
Affidavit
- age of minor/­patient
- details of accident
- witness statements
- police report
- medical report
- details of proposed settlement
- state in the best interest of minor/­patient
- Opinion of indepe­ndent Attorney confirming best interest
Settlement Rule - O70 R9
Settlement before action so Plaintiff must commence action by OS.
Approval of Settlement - O70 R10
If approved, Court will give directions on
- Who should pay
- Who to pay money to
- Amount to be paid
- How money is to be applied
The Order is then drawn by the P's attorney and promptly served on D.
Rejection of Settlement - O70 R9(1)(b)
The Court will give directions as to the further prosec­ution of the claim.
 

DISA­BILITY CONT'D

WHY COURT APPROVAL NEEDED
1. Protect persons under disability against incomp­etence of the legal advisor which may lead to receiving a lower amount of claim than it is worth;
2. Provide a way for the D to obtain a discharge against a person under disability (terms form part of the Consent Order);
3. Ensure Counsel is paid proper costs (no more no less);
4. Ensure that the money agreed to be paid to the person under disability is 'properly looked after and wisely applied'

FORMS OF SETTLEMENT & COMPRO­MISE

1. Judgment by Consent
2. Agreement for D to submit to Judgment
3. Order by Consent to Stay Procee­dings
4. Consent Order to dismiss, discon­tinue or withdraw
5. Tomlin Order

STAY OF PROCEE­DINGS

May be a part of Consent Order
NOT equivalent to discon­tin­uance or granting of Judgment. Procee­dings remain in existence
Stay can be removed if proper grounds can be shown Cooper v Williams
Applic­ation for Stay
Summons to Registrar

CONSENT ORDER

Consent Order
Judgment or Order made by the Court in accordance with the agreement made by the parties.
General Effect of Compromise
Replace the claim in original action. New action required to enforce the contract.
Perfor­mance of Agreement
Should include terms of Agreement in Order with liberty to apply.
Liberty to apply
Can make applic­ation in original action to enforce the terms of the agreement.

EFFECTS OF SETTLEMENT & COMPRO­MISE

1. Ends Procee­dings;
2. Precludes parties from taking further steps in action
3. Supersedes the original cause of action except where liberty to apply was pleaded;
4. Binds all parties until Order or Judgment set aside

EFFECTS OF SETTLEMENT & COMPRO­MISE

1. Ends Procee­dings;
2. Precludes parties from taking further steps in action
3. Supersedes the original cause of action except where liberty to apply was pleaded;
4. Binds all parties until Order or Judgment set aside