22. Judgments, Orders, and Enforcement Flashcards
In what courts are money judgments enforced?
A judgment or order of the County Court for the payment of money which is sought to be enforced wholly or partially against goods shall be enforced only in the High Court where £5k or more, only in the CC where less than £600 (except for money under the employment tribunals act), and in any other case may be enforced in either the high court or county court.
Who will draw up judgments/orders?
Generally the court, unless:
1. The court orders a party to draw it up;
2. A party, with permission of the court, agrees to draw it up
3. The court dispenses with the ned to draw it up; or
4. It is a consent order
5. Or it is in the KBD at the Royal Courts of Justice, other than the admin court, will be drawn up by the parties (except for orders of its own initiative or otherwise ordered)
What may the court direct re an order that is being drawn up by a party?
That it must be checked by the court before it is sealed
What may a court direct re an order that is being drawn up by the court?
The parties must file an agreed statement of its terms
Where a judgment or order is to be drawn up by a party, when must it be filed by? What happens if he fails to file it within that period?
No later than 7 days after which the court ordered or permitted him to draw it up so that it can be sealed by the court.
If he fails to file it, any other party may draw it up and file it
What must happen re service where a judgment or order has been drawn up by a party and is to be served by the court?
The party who drew it up must file a copy to be retained at court and sufficient copies for service on him and other parties; and
Once it has been sealed, the court must serve a copy of it on each party to the proceedings
Who must an order otherwise at trial be served upon?
Unless otherwise directed by the court:
1. The applicant and respondent; and
2. Any other person on whom the court orders to be served
What is a consent order/judgment?
One in which all the parties agree the terms in which it should be given or made
When may a court officer enter and seal an agreed judgment or order?
If it is a judgment or order for:
1. The payment of money (incl a judgment or order for damages or value of goods TBD by the court); or
2. Delivery up of goods with or without the option or paying for their value
OR
An order for:
1. The dismissal of any proceedings, wholly or in part
2. The stay of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the other or elsewhere;
3. The stay of enforcement of a judgment, unconditionally or on condition that money due is paid in instalments specified
4. The setting aside of a default judgment which has not been satisfied
5. The payment out of money which has been paid into court
6. Discharge from liability of any party
7. Payment, assessment, or aiver of costs, or such other provision for costs as may be agreed
AND
Neither party are LIPs
And no CPR or PD makes approval of court necessary before an agreed order can be made
Such judgments are to be drawn up in accordance with the normal rules on drawing up judgments/orders
May a consent order still be made even if any of the perquisites for making a consent order are not present?
Yes, a party may apply for such a judgment or order in the terms agreed
The court may deal with such an application on the papers
What must happen on the face of a consent order?
- It must be drawn up in the terms agreed;
- Expressed as being ‘by consent;
- And signed by the legal rep acting for each of the parties, or by a LIP himself.
When does a judgment take effect?
From the day it was given or made, or such later date as may be specified
Does not apply to judgment against a state.
What are Tomlin orders?
An order in which proceedings are stayed on agreed terms to be scheduled to the order.
They record terms of settlement agreed between the parties but those terms are not ordered by the court and are not enforceable without a further order.
Most cases conclude with such an order
How should a Tomlin order read?
The claimant and the defendant having agreed to the terms set out in the schedule hereto, IT IS ORDERED THAT all further proceedings in this claim be stayed except for the purpose of carrying such terms into effect. Permission to apply as to carrying such terms into effect.”
There is a draft for it
Are the terms in the schedule of a Tomlin order enforceable?
No, as they are not technically part of the order. They cannot be directly enforced.
Does a Tomlin order being created mean that the public can inspect a schedule of such an order?
No.
Any confidentiality of such a schedule is also not a derogation from the principle of open justice
The court should also not demand to see a confidential agreement which is scheduled in a Tomlin order.
Where should a provision seeking a detailed assessment of costs be given in a Tomlin order?
In the body of the order, not in the schedule. Otherwise, the costs judge will not be able to carry out the assessment
What orders does a judge usually make for a Tomlin order?
That the proceedings are to be stayed to enable the agreed terms to put into effect;
That, if the terms require it, there by a payment out of monies paid into court and provision for accrued interest thereon;
For costs to be assessed, whether between the parties or out of public funds
In an application to commit, can terms of a Tomlin order be enforced?
Not unless an injunction or order for specified performance is first obtained. Hence the need for permission to apply for the purpose of carrying such terms into effect
What relevance is limitation for Tomin orders?
They are a simple contract, hence the six-year time limit applies. Moreover, an application to enforce obligations is an application to enforce the court’s own order, to which 17.4 (amendments to statements of case after the end of a relevant limitation period) does not apply.
Can terms in a Tomlin order be rectified?
Yes, under standard contractual principles.
However, the court does not have a general power to vary the terms of a settlement in a Tomlin order
How are terms in a Tomlin order to be interpreted?
It must be construed as a commercial instrument. The aim of the inquiry is not to probe the real intentions of the parties but ascertain the contextual meaning of the relevant contractual language; the inquiry is objective.
What could be a useful device where a claimant in a personal injuries claim is pressing for a provisional damages award and an order permitting variation of the periodic payments?
A Tomlin order may be useful for settling quantum on a conditional basis.
That is to say, in such an order the parties may stipulate that the agreed lump sum payable and periodical payments for future care and case management and for future loss of earnings set out in the order would be treated as provisional or variable or otherwise, dependent upon a ruling by the court as to whether a provisional damages claim and an application to vary the periodical payments were appropriate
Is there any trust created under a Tomlin order?
Yes.
The effect of the terms of compromise recorded in a Tomlin order is that the defendant has irrevocably dedicated the property, the subject matter of the agreed terms, to the purposes of the compromise. The defendant would be required, if necessary by an order, for specific performance, to realise the property as agreed with the claimant. The compromise imposes an immediate trust