Consent Order - Help Needed

[pauli]

Can someone please explain the difference between discontinuation and dismissal.

 

Does dismissal (by mutual consent) automatically preclude a claimant from bringing a further action?

 

I read somewhere that because a voluntary agreement does not involve " any reasoned judicial decision or determination of the facts of law" it does not

 

Dismissal seems a great result but is it?

[reallymadwoman]

bump

[surfaceagentx20]

Sorry, I meant to answer this one before after I got your PM. Here goes:

Discontinuance and dismissal in the context of a consent order are analogous. Outside of a consent order they have different meaning. Outside of, discontinuance occurs where one party unilaterally abandons the whole or part of a claim or defence and dismissal occurs where the court strikes out the whole or part of a claim or defence.

A claimant in proceedings subject to a consent order which provides for the dismissal of the claimant's claim would not preclude that claimant from re-litigating but, it is suggested that were it to seek do so, the permission of the court would be required beforehand pursuant to CPR 38.7 which provides

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if

(a) he discontinued the claim after the defendant filed a defence; and

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

Was there any provision in the consent order for the payment to you by the claimant of your costs?

If proceedings were commenced without permission, I would apply to [1] stay those proceedings pending the grant of permission and payment of costs (if the consent order provided this) [2] strike out the proceedings as an abuse of process under CPR 3.4(b). In the absence of a valid explanation, it seems to me that if the Claimant regarded its case as without merit such that it consented to its dismissal, re-litigating the same (unmeritorious) subject matter would indeed be abuse.

For further assistance see Securum Finance Ltd v Ashton [2000]

 

x20

[pauli]

thanks x20

 

I am pushing for dismissal with an undertaking from Claimant to neither make any further claim or assign the debt in return for accepting each party bears own costs.

 

Will be happy with this result

 

Thanks for the case link..it looks very interesting at first glance. I will digest over the weekend

 

thank you again for your advice. Spot on as usual.