District Judge Christopher Tromans offers some procedural tips on how to settle proceedingsOne of the objects of the Civil Procedure Rules 1998 (CPR) is to encourage the settlement of cases by agreement.

The three principal methods of implementing an agreed settlement are discontinuing the proceedings, the entry of judgment by co nsent, and staying the proceedings on the agreed terms.

But consent applications are regularly being lodged which seek a mixture of all three options and these have to be returned with the question as to which option is intended to be used.DiscontinuanceThe courts are often asked to make consent orders giving permission to discontinue.

This is rarely necessary.

The procedure is to be found in CPR part 38.

The permission of the court is only required where:-- The court has granted an interim injunction;-- Any party has given an undertaking to the court;-- The claimant has received an interim payment and the defendant has not given written consent to the discontinuance, or;-- There is more than one claimant and the other claimants have not given written consent.The discontinuance procedure involves the filing and service on all other parties of a notice in form N279.

Any consents provided under rule 38.2 must be attached to the notice and, in cases where there is more than one defendant, the notice must specify against which defendant the claim is discontinued (rule 38.3).

If a trial window has been fixed, the listing officer must be informed (PD39 para 4.1).

A defendant can apply for the notice to be set aside within 28 days of service (rule 38.4).

Otherwise, the claim is discontinued as from the date of service.There are two caveats.

Firstly, defendants are entitled to their costs incurred before discontinuance unless the court otherwise orders or unless the case has been allocated to the small claims track (rule 38.6).

Thus, if the agreed terms provide that each side should pay its own costs, an order is required limited to the issue of costs.

Secondly, if a claimant, having discontinued after the defendant has filed a defence, wishes to commence fresh proceedings against the same defendant on substantially the same facts, he must first obtain the permission of the court (rule 38.7).In general, discontinuance is the simplest option in cases where the agreed terms have already been implemented.Consent judgmentThis is the option normally most advantageous to a claimant when the terms have not been implemented, since if no other date for payment has been agreed, the judgment will be enforceable after 14 days from the date of the judgment (rule 40.11).

However, the terms must represent orders which the court can properly make and which can be enforced as a judgment or order.

It will normally also be registrable in the Register of County Court Judgments and so the defendant may be anxious to implement the agreement in another way (see below).Stay of proceedingsThis is normally effected by a Tomlin order, having been invented by Mr Justice Tomlin in Dashwood v Dashwood (1927) 64 NJNC 431.

In that case, the claim had been stayed on terms set out in the schedule to the order.

It was held that the terms could not be enforced by committal and that it would be necessary to apply for either a mandatory injunction or an order for specific performance.To solve the problem, Mr Justice Tomlin devised a formula whereby an order staying proceedings would exclude from the stay the implementation of the agreed terms with liberty to apply for that purpose, so that one application for the enforcement of the terms could, if necessary, be made.The CPR do not specifically deal with Tomlin orders although they are mentioned briefly in the Chancery Guide.

They are suitable for cases in which the agreed terms are to be implemented in the future but where the defendant does not consent to the entry of judgment, often because liabili ty has not been conceded.

In practice, many draft Tomlin orders received by the courts are incorrectly drawn and have to be returned.Apart from the stay, the body of the order must contain all the terms which require an order to put them into effect.

These include the payment out of funds in court and orders for costs and public funding assessment.

All other terms, including those dealing with the payment of money at a later date and discharges from liability, should be contained in the schedule to the order.

It is, however, important that the terms in the schedule are drawn with precision.

In Wilson & Whitworth Ltd v Express and Independent Newspapers Ltd [1969] 1 WLR 197, the court refused to enforce agreed terms under the liberty to apply provision because the terms were too vague and insufficiently precise.ASK THE JUDGESMore questions for the Gazette's panel of district judges -- and more answersQ: Is it essential that an application to set aside a case management order is made to the same procedural judge who made the original order?A: Not unless the case has been reserved to that judge.

While it is generally thought desirable for the original judge to deal with the application, particularly in a complex case, this is often impossible to arrange without the hearing being unacceptably delayed.

But it could be argued in some circumstances that it would be more compliant with article 6 of the Human Rights Convention for the application actually to go before a different judge.Q: I refer to Ask the Judges (see [2001] Gazette, 14 June, 47).

The panel answered a question concerning the correct track for a small claim with a substantial counterclaim by referring to a rule change which meant that 'the normal track is to be determined by reference to the value of the claim rather than a higher counterclaim'.

However, PD26 para 7.7 suggests otherwise and that the court will generally regard the larger of the claim and the counterclaim as determining the financial value for tracking purposes.

Why the confusion?A: The practice direction may be in need of some tinkering with so as to bring it up to date with the rule change.

But we do not find any real difficulty with it as it stands.

The important word in the practice direction is generally.

It is attempting to describe what will commonly happen.

It is not attempting to circumscribe the court's options.

If a claim for £1,000 is met by a defence and counterclaim for £1,000,000 'for slander for suing me', it is not going to be allocated to the mult-track.

If the defendant has a genuine £50,000 claim and the claimant just happened to get in first with a £1,000 claim, the case is not going to be allocated to the small claims track.Questions may be e-mailed to: kimdavies@lawsociety.org.uk The answers are the view of our panel and not binding on any court.

The panel is unable to enter into personal correspondence.