Settling a case

Please consider whether you have complied with the following guidelines when preparing settlement consent documents. Settlement consent documents can be rejected by the court if they do not meet these criteria.

Form

The appropriate form is generally Form 44 (Consent judgment or order).

Note: that there is no form entitled terms of settlement.

Identity of parties

The names of the parties as they appear on the consent judgment orders must be identical with the names as they appear on the originating process (as amended, if applicable). The consent judgment/order must contain the party details of all the parties.

Verdict

Unless there are special circumstances, it is generally unnecessary and inappropriate for there to be a verdict (as opposed to or in addition to a judgment) against any party. Practitioners are reminded that the registrars do not have the power to enter a verdict.

Multiple defendants

If there are multiple defendants it must be clear against which defendant(s) any judgment for the plaintiff is to be entered and the amount.

Unnecessary orders and notations

Draft consent judgment or orders ought be reviewed to consider whether all notations and orders are appropriate to the particular matter (especially where the plaintiff is a minor of tender years).

Finalisation of entirety of proceedings

Unless it is a partial settlement the consent judgment/orders ought dispose of the entirety of the proceedings against all parties (unless there has already been judgment, discontinuance, etc).

Cross-claims

Matters are not regarded as finalised unless the cross-claims (including costs) are disposed of in the consent judgment or orders. Cross-claims are frequently overlooked.

Signatures

The consent judgment or orders must contain the original signatures of the parties authorised by r 4.4. (R 4.4 now includes counsel). It must be clear as to the party or parties on whose behalf the solicitor is signing (eg 'for the plaintiff and 1st cross defendant').

Dismissal

Where an order for dismissal is sought the consent judgment/orders should provide for the dismissal of either the 'proceedings' or of the 'proceedings commenced by the statement of claim/cross-claim'. Pleadings are generally 'struck out', not 'dismissed'.