22. Judgments, Orders and Enforcements

Question 1

Who will draw up a judgment or order?

Answer 1

The basic rule is that all orders + judgments are drawn up by the court. However, this is subject to extensive exceptions:

(1) the court orders a party to draw it up
(2) a party, with the permission the court, agrees to draw it up
(3) the court dispenses with the need to draw it up; or
(4) it is a consent order

Most importantly, the basic rule is different where the judgment or order is made in claims proceeding in the King’s Bench Division at the RCJ (other than in the Administrative Court). In these cases, all orders/judgments will be drawn up by the parties, unless it’s an order that the court makes of its own initiative or the court orders otherwise.

Question 2

What can the court direct in relation to the drawing up and filing of judgments and orders by the parties?

Answer 2

that -

(1) a judgment or an order drawn up by a party must be checked by the court before it sealed; or
(2) before a judgment or an order is drawn up by the court, the parties must file an agreed statement of its terms.

Question 3

If a party draws up a judgment/order, when must it be filed by? What is the consequence of failing to file it in time?

Answer 3

• no later than 7 days after the date on which the court ordered/permitted him to draw it up
• failure to comply: any other party may draw it up and file it

Question 4

Where a judgment or order has been drawn up by a party and is to be served by the court what must the party do and what must the court do?

Answer 4

The party who drew it up must file a copy to be retained at court and sufficient copies for service on him and on the other parties and once it has been sealed the court must serve a copy of it on each party to the proceedings.

Question 5

Where a judgment or order is drawn by a party and filed with the court, does it have to also be served?

Answer 5

Yes - unless the court orders otherwise it must be served on:

(a) the applicant and the respondent; and
(b) any other person on whom the court orders it to be served

This is why the party drawing it up has to provide sufficient copies for service and for a copy to be retained at court

Question 6

What are consent judgments/orders and when can they be made without the court’s permission?

Answer 6

Orders/judgments made in circumstances where all the parties agree the terms in which a judgment should be given or an order should be made.

Can be made if 3 conditions are satisfied:

(a) It is a judgment/order of the following kind:

• Payment of an amount of money
• Delivery up of goods
• Dismissal of any proceedings, wholly or in part
• Stay of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the order or elsewhere
• Stay of enforcement of a judgment
• Setting aside under part 13 of a default judgment which has not been satisfied
• Payment out of money which has been paid into court
• Discharge from liability of any party
• Payment, assessment or waiver of costs, or such other provision for costs as may be agreed

(b) None of the parties is a litigant in person; and

(c) The court’s approval is not required by any rules before an agreed order can be made

N.B. in all other cases parties can still apply for a judgment or order in terms agreed - i.e. they need the court’s consent (this can be given without a hearing)

Question 7

What are the rules regarding the drawing up of consent orders/judgments?

Answer 7

Who draws it up?

All the normal rules apply, except that the starting point is never that the court draws it up (so basically it seems like in practice the court would need to either make an order for the drawing up or the parties agree that they will draw it up). The time limits also apply.

Other rules

• The order must be drawn up in the terms agreed
• It must be expressed as being “By Consent”
• It must be signed either by the legal reps or the party if it is a litigant in person

Question 8

What are the limitations on the court’s power to make consent orders and judgments?

Answer 8

• The court can only make an order that is within its jurisdiction, such as an order for damages or costs, or a declaration, even if the relevant term has been agreed by the parties.
• The court can only make an order based on the issues, causes of action, and claims for relief pleaded in the statements of case. If this is a problem the parties may ask for permission to amend the statements of case to provide a basis for the order sought.

If the compromise includes matters outside the powers of the court or the issues in the case, the options are to use a Tomlin Order or to record all or some of the terms in a contract.

Question 9

What is a Tomlin Order?

Answer 9

• A consent order under which the court orders that the proceedings are stayed on agreed terms to be scheduled to the order. The order will also provide for each party to have permission to apply to the court if necessary to compel compliance with the scheduled terms.
• As any direction or imperative issued by the court has to be set out on the face of the order rather than being contained in the schedule, only three things are normally dealt with on the face of the order: (a) a stay of the proceedings, except for the purpose of carrying out the terms of the compromise as set out in the schedule; (b) each party to have permission to apply to the court if necessary to compel compliance with the terms; (c) the payment and assessment of costs.
• The agreed terms in the schedule constitute a binding contract between the parties
• If the terms in the schedule are disclosed to the judge making the order, the terms of the agreement will form part of the order - in such a case it will usually not be a Tomlin order
• A properly drafted Tomlin order should be very short and simple

At the moment, too many orders are neither Tomlin orders, nor enforceable other kinds of orders. You shouldn’t really go for a halfway option where you have some terms in the order and others in the schedule and it’s not really clear if this is meant to be a Tomlin order or not.

Question 10

Are the terms contained in the schedule of a Tomlin order part of the order? Can they be enforced like a court order? Can the court vary these terms?

Answer 10

No to all of these questions

The terms are not part of the order (they are simply an agreed between the parties). As such, the court cannot alter or vary them and they can’t be enforced like court orders.

Question 11

What are the only orders that a court will usually make in the context of Tomlin orders?

Answer 11

(i) that the proceedings be stayed to enable the agreed terms to be put into effect;

(ii) that, if the agreed terms require it, there be payment out of monies paid into court and provision for accrued interest thereon;

(iii) for costs to be assessed, whether between the parties or out of public funds

Question 12

How can you enforce the terms in the schedule of a Tomlin order?

Answer 12

You can apply to the court to enforce the obligations contained in the schedule. This is an application to the court to enforce its own order.

You can bring proceedings for breach of contract.

Question 13

What are the consequences of the fact that the schedule of a Tomlin Order is contractual?

Answer 13

• The contractual test for interpretation applies
• The contract can be enforced by bringing breach of contract proceedings within the six-year time limit for simple contracts in the Limitation Act
• The schedule is not susceptible to variation etc by the court
• Terms can be rectified according to normal contractual principles
• The court can grant a declaration concerning the proper interpretation of the terms in the schedule

Question 14

What are the consequences of a Tomlin order?

Answer 14

• Creates an immediate trust over the subject matter of the agreed terms
• D can be required, if necessary by an order for specific performance, to realise the property as agreed with the claimant

Basically, the schedule is just a specifically enforceable contract (and therefore - like contracts for the sale of land - gives rise to a trust)

Question 15

Do the terms of a Tomlin order have to be limited to the scope of the original dispute?

Answer 15

No - the parties can agree to whatever they want. This is one of their advantages.

Question 16

Will a court enforce a Tomlin order that is too vague?

Answer 16

No - like any other contract, it needs to be sufficiently clear to be enforceable

Question 17

When do judgments/orders take effect?

Answer 17

From the day when they are given or made or such later date as the court may specify

Question 18

What are the advantages of a Tomlin order?

Answer 18

(1) the schedule does not have to be made public; so allows the parties to keep terms confidential
(2) the schedule is not limited to those orders that a judge has jurisdiction to make in the case
(3) the schedule is better suited to record long or complex terms, as it can be worded in a more flexible way than an order.

Question 19

What is a disadvantage of Tomlin orders?

Answer 19

The enforcement powers for the terms in the schedule are more limited than for the court order itself

Question 20

From which date does interest begin to run?

Answer 20

From the date that judgment is given unless the court orders otherwise or another rule provides for a different date. The court may even order that interest should begin from a date before judgment.

Question 21

What can you do if judgment or an order has been given against you and something has happened that means you want to prevent it from being enforced (at least immediately)?

Answer 21

You can apply for a stay of execution of the judgment or order or other relief on the ground that matters have occurred since the date of the judgment or order.

The court can grant such relief and on such terms as it thinks just.

Question 22

Who can apply to set aside or vary a judgment or order?

Answer 22

A person who is not a party but who is directly affected by a judgment or order.

Remember: in some circumstances parties can also apply to have judgments set aside (e.g. default judgments, setting aside where it was given bc the party failed to attend court).

Question 23

How long does a part have to comply with a judgment or order for the payment of an amount of money (including the payment of costs)?

Answer 23

14 days from the date of the judgment or order, unless:

(a) the judgment/order specifies a different date for compliance; or
(b) any other Rules in the CPR specify a different date for compliance; or
(c) the court has stayed the proceedings or judgment

Question 24

What can be done if there has been an error in a judgment or an order?

Answer 24

• Accidental slips + omission can be corrected by the court at any time (the court has an inherent power to vary its own orders to make the meaning and intention of the court clear)
• Parties can also apply for correction. This can be without notice if the slip or omission is obvious. The court can also direct that notice should be given to the other party/parties if this has not already happened.
• Such an application can be dealt with without a hearing (1) where the applicant so requests, (2) with the consent of the parties, or (3) where the court does not consider that a hearing would be appropriate
• If the application is opposed it should, if practicable, be listed for hearing before the judge who gave the judgment or made the order

Question 25

What is special about the way judgment can be given where both the main claim (C’s claim against D) and the counterclaim (D’s claim against C) is successful?

Answer 25

The court can either give two separate judgments or it can just order the party that needs to pay the greater sum to pay the balance (i.e. just combine what would otherwise be two judgments).

Regarding costs, the position is that the court can make separate costs orders even if only one judgment is given.

Question 26

What is the timeframe within which an act specified in an order (other than the payment of an amount of money) must be done? What is the consequence of non-compliance?

Answer 26

The time specified in the order. The court always has to specify the timeframe in the order. The consequence is also that set out in the order (if the court has specified any such consequence).

I.e. court HAS to specify a timelimit, but MAY specify a consequence

Question 27

What rules dictate the enforcement of a fine (imposed under the County Courts Act 1984)?

Answer 27

• The court will act of its own motion in enforcing a fine: if a fine is not paid in accordance with the order imposing it, the court officer shall, as soon as reasonably possible, report the matter to a judge
• Where a fine is directed to be paid by instalments, default in the payment of any instalment may be taken as if default had been made in payment of the whole of the fine
• If an order is made for payment of a fine to be enforced by warrant of control, the order shall be treated as an application to the court for the issue of the warrant at the time when the order was made
• If a person pays a fine and later gives evidence to satisfy the court that, if the evidence had ben given earlier, no fine or a smaller fine would have been imposed, the court may order the whole or part of the fine to be repaid

Question 28

By what methods can a judgment creditor enforce a judgment or order for the payment of money (n.b. this does not include a judgment or order for the payment of money into court)?

Answer 28

(1) taking control of goods (via a writ of control or warrant of control)
(2) a third party debt order
(3) a charging order
(4) in the County Court, an attachment of earnings order

Question 29

What can the court direct if a party has not complied with a mandatory order, an injunction or a judgment or oder for the specific performance of a contract? What are the rules relating to the costs of this?

Answer 29

That the act be done either by the party by whom the order or judgment was obtained or some other person appointed by the court

The costs to another person of doing the act will be borne by the disobedient party.

The option to make such a direction is without prejudice to the court’s powers to punish the disobedient party for contempt.

Question 30

Whose responsibility is it to enforce a judgment?

Answer 30

The judgment creditor’s

Question 31

What does a judgment creditor have to do if they wish to enforce a High Court judgment or order in the County Court?

Answer 31

Apply to the High Court for an order transferring the proceedings.

Question 32

Can judgments/orders be enforced by or against a party that is not a party to proceedings?

Answer 32

Yes - if the judgment/order is given or was made in favour of or against that person. All the same methods of enforcement apply as to parties.

Question 33

What happens to the enforcement of a judgment/order if the judgment/order is set aside?

Answer 33

It ceases to have effect unless the court orders otherwise.

Question 34

What can a judgment creditor do if they need information from the judgment debtor to enforce the judgment/order?

Answer 34

Apply to the court for an order requiring the judgment debtor (in the case of a corporation: an officer of that body) to attend court to provide information about (usually referred to as ‘oral examination’):

• (i) the debtor’s means; or
• (ii) any other matter about which information is needed to enforce a judgment or order

Question 35

What is the purpose of ‘oral examination’?

Answer 35

To enable the judgment creditor to better decide which method or methods of enforcement to use (sequentially or simultaneously) because enforcement can be expensive

Question 36

What rules govern the making of an application for an order requiring a judgment debtor to attend court to provide information (i.e. ‘oral examination’)?

Answer 36

• The application can be made without notice
• It must be issued in the court that made the judgment/order, except if the proceedings have since been transferred somewhere else - then the application must be issued in the new place
• App can be dealt with by a court officer (rather than a judge) without a hearing. But the creditor can apply for the questioning to be conducted before a judge (must give reasons for this in the app) - in that case the court officer will refer the application to a judge. Additionally, the court officer may refer the application to a judge ‘in an appropriate case’.

Formal requirements of the application notice:

• Form N316 if app is to question an individual, form N316A if app is to question a corporation
• State the name and address of the judgment debtor
• identify the judgment or order which the judgment creditor is seeking to enforce
• If judgment/order is for payment of money -> state the amount presently owed by the debtor under the judgment/order
• If not for payment of money -> identify the matters about which the judgment creditor wishes the debtor to be questioned

Obligations on debtor if order is issued pursuant to app:

• Attend court at the time and place specified in the order
• When attending, produce documents in his control as described in the order
• Answer on oath such questions as the court may require

Question 37

When will questioning for the purposes of obtaining information from a judgment creditor for the enforcement of a judgment/order take place before a judge?

Answer 37

Only if the judge considering the request decides that there are compelling reasons to make such an order.

Question 38

If a judgment debtor is ordered to attend court to provide information for enforcement purposes, who will conduct the questioning?

Answer 38

(1) Where questioning takes place before a court officer

• General rule: the court officer does the questioning
• The parties may attend court ask questions themselves
• They may also, instead of attending, attach a list of proposed additional questions to the application for the questioning

(2) Where questioning takes place before a judge

• The judgment creditor/legal rep will conduct the questioning

Question 39

What is the conduct of the questioning of a judgment debtor for the purposes of obtaining information for the enforcement of a judgment/order?

Answer 39

• The CPR provides a list of standard questions to be used
• The questioning is on oath

(1) Where the questioning takes place before a court officer

• The parties can attach a list of further questions to their application
• The court officer will make a written record of the evidence given, unless the proceedings are tape recorded
• At the end of the questioning, he will read the record of evidence to the person being questioned and ask him to sign it;
• If the person refuses to sign it, note that refusal on the record of evidence

(2) Where it takes place before a judge

• The parties are the ones asking questions anyway (so presumably they can just choose to ask additional questions)
• Proceedings will be tape recorded and the court will not make a written record of the evidence

Question 40

What is the consequence of failing to comply with an order to attend court for questioning regarding information for the enforcement of a judgment/order?

Answer 40

N.B. Failure to comply also includes refusing to take the oath or to answer any question

Step 1: The matter will be referred to a High Court judge or Circuit Judge

Step 2: Judge can hold the person in contempt of court and make an order punishing them by a fine, imprisonment, confiscation of assets or other punishment under the law

Step 3: The order (if it is made) will be suspended on the following conditions: (1) the person must attend court a time and place specified in the order, and (2) the person must comply with all the terms of that order and the original order (basically you get a second chance at compliance)

Step 4: If the person fails to comply with any term of the suspended order, the suspended order can either be enforced or discharged

Question 41

What is a ‘final third party debt order’?

Answer 41

An order requiring a third party to pay to the judgment creditor:

(a) the amount of a any debt due or accruing due to the judgment debtor from the third party; or

(b) so much of that debt as is sufficient to satisfy the judgment debt and the judgment creditor’s costs of the application

N.B. there are also interim orders of this kind but we don’t need to know about them

Question 42

What is the significance of the fact that a bank account in credit is a debt owed by the bank to the customer for third party debt orders?

Answer 42

The judgment creditor can get such an order against the bank if they have the judgment debtor’s bank details (possibly from obtaining information following oral examination).

This is obviously super useful - I assume this is one of the most common ways in which judgments are enforced.

Question 43

How can a judgment creditor get a ‘final third party debt order’?

Answer 43

• Has to apply to the court
• Application can be without notice
• Must be issued in the court which made the judgment or order which it is sought to enforce, except if the proceedings have since been transferred to a different court (then it must be issued there)

Requirements of the application notice:

• Must be verified by a statement of truth
• Form N349
• Contain: (i) the name and address of the judgment debtor; (ii) details of the judgment or order sought to be enforced; (iii) the amount of money remaining due under the judgment or order; (iv) name and address of the third party; (v) if the third party is a bank or building society, the name and address of the branch at which the judgment debtor’s account is believed to be held + the account number
• If the judgment creditor does not know all or part of this information, he must confirm that to the best of his knowledge the third party is within the jurisdiction and that they owe money to or hold money to the credit of the judgment debtor
• Also needs to state details of any other applications for third party debt orders issued by the judgment creditor in respect of the same judgment debt
• Needs to provide the sources or grounds of the judgment creditor’s belief of the info provided in the notice

The court will NOT grant speculative applications of this kind

Question 44

Can a judgment creditor use more than one method of enforcement at the same time?

Answer 44

Yes

Question 45

What is a charging order? What kinds of charging orders exist?

Answer 45

An order made for the purpose of enforcing a judgment or order to pay a sum of money. It imposes on property of the judgment debtor specified in the order a charge for securing the payment of the money.

4 kinds:
(1) On land (the most common)
(2) On securities
(3) Over a judgment debtor’s interest in a fund in court
(4) Over the judgment debtor’s interest in partnership property

Question 46

Which court will make the charging order?

Answer 46

Almost always the County Court

The only time that the HC has exclusive jurisdiction is where the property to be charged is a fund lodged in the High Court. In all other cases where there is a HC judgment the CC has a concurrent jurisdiction to make charging orders. In the case of a CC judgment, the CC has exclusive jurisdiction.

Question 47

What is the procedure for applying for a charging order?

Answer 47

• You have to apply but you can do so without notice
• Possible to apply for a single charging order in respect of more than one judgment or order against the same judgment debtor
• Must contain the following information: (i) the name and address of the judgment debtor; (ii) details of the judgment or order sought to be enforce; (iii) the amount of money remaining due under the judgment or order; (iv) if the judgment debt is payable by instalments - whether the order was made on or after 1 October 2012 and the amount of any instalments which have fallen due and remain unpaid; (v) if the judgment creditor knows of the existence of any other creditors of the judgment debtor - their names and (if known) their addresses; (vi) details of the judgment debtor’s interest in the asset

Question 48

If a charging order is made against land that is in the sole name of the judgment debtor (or owned jointly by spouses who are both judgment debtors) what will the charge be against?

Answer 48

The land itself

Question 49

Can a charging order be made against land that the debtor is jointly entitled to with someone else?

Answer 49

Yes, but then the order ranks as a charge on the debtor’s beneficial interest rather than upon the land itself

Question 50

What are writs/warrants of control?

Answer 50

The mode for the enforcement of a money judgment by the seizure and sale of the debtor’s goods and chattels sufficient to satisfy the judgment debt and costs of the execution.

Question 51

Which court has jurisdiction to grant third party debt orders?

Answer 51

Rule: Application must be made to the court which made the judgment or order which the judgment creditor is seeking to enforce.

Exception: if the proceedings have already been transferred to another court, then the application is made to that court instead.

Question 52

Which court has jurisdiction to grant charging orders?

Answer 52

The High Court and County Court have concurrent jurisdiction to make charging orders.

Exceptions:
(1) where the property over which the charge is sought is money lodged in a fund in the High Court, then the High Court has exclusive jurisdiction; and
(2) where the property over which the charge is sought is money lodged in a fund in the County Court, then the County Court has exclusive jurisdiction.

Question 53

Which court has jurisdiction to grant an order of execution against goods and where should you bring proceedings?

Answer 53

1. If it’s an order by the HC: bring proceedings in the HC + HC has jurisdiction
2. If it’s an order by the CC: depends on the value that is sought to be enforced -

• Where judgment or order being enforced is £5,000 or above the High Court has exclusive jurisdiction + proceedings should be brought in the HC
• Where judgment or order being enforced is less than £600 the County Court has exclusive jurisdiction + proceedings should be brought in the CC
• Where judgment or order being enforced is between £600 and £4,999.99 then either court has jurisdiction, but you should bring proceedings in accordance with CPR 23.2, which means that you bring the enforcement proceedings in the court that dealt with the main proceedings

Question 54

Which court has jurisdiction to grant an attachment of earnings order?

Answer 54

The County Court has exclusive jurisdiction.

Question 55

In what circumstances do you need the court’s permission to issue a writ or warrant?

Answer 55

Where:

(a) six years or more have elapsed since the date of the judgment or order

(b) any change has taken place in the parties that are (i) entitled to enforce the judgment or order or (ii) that are liable to have it enforced against them

(c) the judgment or order is against the assets of a deceased person coming into the hands of that person’s executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets

(d) any goods to be seized under the relevant writ or warrant are in the hands of the receiver appointed by a court or sequestrator

(e) under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled

(e) the permission sought is for a writ of control or writ of execution, and that writ is to be in aid of another writ of control or execution

(g) an application is made for a writ of sequestration

Question 56

What are the formal requirements of an application for permission to issue a writ or warrant?

Answer 56

• Made in accordance with Pt 23 (i.e. the general requirements for applications for court orders)
• Can be made without notice being served on any other party unless the court directs otherwise
• State the following information: (i) identify the judgment or order to which the application relates; (ii) if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed; (iii) give such other information as is necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment or order, and that the person against whom it is sought to issue execution is liable to execution on it

There are some additional requirements for specific cases:

• If it’s an application that is made more than 6 years since the judgment/order -> need to state the reasons for the delay in enforcing it
• If it’s a case where there has been a change in the parties -> state the change that has taken place
• If it’s a case where the assets in question are in the hands of a deceased person’s administrator (and this happened after the date of judgment) or the assets are in the hands of a receiver appointed by a court or sequestrator -> state that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that that person has refused or failed to do so

Question 57

If the court grants permission to issue a writ or warrant and the writ/warrant is not issued within 1 year from it granting permission, what happens?

Answer 57

Permission lapses, but the court may grant a fresh permission order

Question 58

If a judgment or order is set aside what effect will this have on enforcement?

Answer 58

Any enforcement of the judgment or order will cease to have effect unless the court orders otherwise.

Question 59

Describe the process of taking control of goods.

Answer 59

1. The enforcement agent gives notice of enforcement to the debtor.
2. The debtor either makes contact with the enforcement agent and pays the debt or enters into an arrangement for payment which is maintained or the enforcement agent takes control of goods.
3. The goods are sold at public auction.
4. The proceeds of sale are used to pay the amount outstanding - which includes the debt and costs.

Question 60

What is a controlled goods agreement?

Answer 60

• One of the four ways that an enforcement agent may take control of goods
• It is an agreement under which the enforcement agent and the debtor agree terms for the repayment by the debtor of the sum outstanding under the judgment or order

Question 61

What does an application for an attachment of earnings order have to include?

Answer 61

A certificate of the amount of money remaining due under the judgment or order and that the whole or part of any instalment due remains unpaid

Question 62

What is the most common reason for transferring from the HC to the CC for enforcement purposes?

Answer 62

The CC has exclusive jurisdiction to make an order under the Attachment of Earnings Act 1971.

Question 63

What is the most common reason for transferring from the CC to the HC for enforcement?

Answer 63

To use the HC Enforcement Officer to levy execution.

Question 64

Is it possible to obtain a third party debt order against a bank account in the joint names of two people?

Answer 64

No (from case law)

Question 65

Who is an attachment of earnings order made against?

Answer 65

The debtor’s employer

Question 66

What must a lawyer ensure when a settlement is recorded?

Answer 66

that -

(1) the terms are comprehensive;
(2) each term is clear and sufficiently detailed
(3) the client understands the agreement
(4) the client accepts the agreement
(5) the terms are appropriately recorded
(6) the terms are appropriately enforceable

Question 67

What form does the outcome of an ADR process take?

Answer 67

Depends on the type of ADR used:

• Arbitration -> award
• ENE -> report
• Mediation + negotiation -> contract

Question 68

Does the outcome of a negotiation/mediation have to be recorded in writing to be binding?

Answer 68

Not necessarily -> normal contractual rules apply (as such forms of ADR will lead to a contract, if successful)

However, if a negotiation is conduct in writing, the outcome will be in writing anyway. In cases where the process takes place orally, it is common to stipulate that any agreement reached only becomes binding when reduced to signed writing.

Question 69

What is the effect of stating in a compromise agreement that it is ‘in full and final settlement’?

Answer 69

Indicates that the parties have settled the entirety of the dispute. Generally, the whole dispute can then no longer be litigated. Obviously issues can arise (e.g. the parties might disagree as to what was and what was not part of the dispute).

Question 70

Where there are existing court proceedings, how can a settlement agreement be recorded?

Answer 70

• settlement agreement, which may take any of the usual forms
• judgment for immediate payment of an agreed sum together with costs. Often this form is used where a settlement is reached at the door of the court, with the judgment being pronounced when the case is called on before the judge
• judgment for an agreed sum (and costs), subject to a stay of execution pending payment by stated instalments. Often the stay is agreed because the defendant cannot afford to pay the whole amount immediately
• informing the court that the case has been settled upon terms endorsed on counsels’ briefs
• informing the court that the case has been settled on terms recorded in a contract. This is appropriate where the terms are detailed, or where signed writing is required. The outcome of the proceedings must still be dealt with
• entry of a consent order setting out the agreement in the form of undertakings. This is more suitable where the dispute is about non-monetary matters, such as a claim for injunctive relief, or specific performance, whether as final or interim relief
• consent order staying all further proceedings upon the agreed terms
• consent order providing for ‘no order’ save as to costs, but setting out the agreed terms in recitals. This is more appropriate for non-money claims, and brings the proceedings to a conclusion other than quantifying costs;
• recording the agreement in a Tomlin Order. This is particularly useful where the agreed terms go outside the scope of the litigation, and in cases where the parties wish to keep the settlement terms confidential

Question 71

How can compromises reached via ADR be enforced?

Answer 71

Depends on the method of ADR:

• in adjudicative procedures such as arbitration the tribunal will make an award. Enforcement will often be through registering the award with the courts of the state where enforcement is to take place, and then enforcing the award as a civil judgment
• in most non-adjudicative procedures, if the parties have resolved their dispute, they will have entered into a contract of compromise. Enforcement is through suing on that contract
• alternatively in a non-adjudicative procedure the parties may agree to record all or part of the compromise agreement in a court judgment or order, and then enforce that judgment or order
• failure to comply with binding decisions in expert determinations and other ADR processes is enforced by suing on the contract where it was agreed the determination would be binding.

Question 72

What is the enforcement procedure for a judgment entered for immediate payment of the sum agreed together with costs (following settlement via ADR)?

Answer 72

Enforcement proceedings (by taking control of goods, charging order, etc) can be taken 14 days after judgment.

My comment: presumably this is because you have 14 days from judgment - by virtue of the CPR - to make the money payment. So the idea is: first you give the debtor the 14 days that they have to comply and then you can bring enforcement proceedings after that.

Question 73

What is the enforcement procedure for a judgment entered for the agreed sum (and costs), subject to a stay of execution pending payment by stated instalments (following settlement via ADR)?

Answer 73

If the instalments fall into arrears, the stay will be lifted, and the judgment creditor can then bring enforcement proceedings.

Question 74

What is the enforcement procedure for a consent order setting out the agreement in the form of undertakings (following settlement via ADR)?

Answer 74

If any of the terms are not complied with, enforcement may be possible immediately or on application to the court depending on the nature of the term in question.

Question 75

What is the enforcement procedure for a Tomlin order?

Answer 75

• Substantive terms in a Tomlin Order take effect and are enforceable as they stand without the need for any further court order.
• In the event of the scheduled terms being breached, enforcement is a two-stage process. First, the claim must be restored under the ‘permission to apply’ clause, and an order obtained to compel compliance with the term breached. A failure to comply with that order may be a contempt of court.

Question 76

What is the enforcement procedure for a consent order staying all further proceedings upon agreed terms (following settlement via ADR)?

Answer 76

The courts are very unwilling to remove the stay imposed by this type of order, so enforcement can usually be effected only by bringing fresh proceedings for breach of the compromise contract.

Question 77

What is the enforcement procedure for a consent order providing for ‘no order’ save as to costs, but setting out the agreed terms in recitals (following settlement via ADR)?

Answer 77

Recitals in such a consent order may be enforced without the need to bring a fresh claim.

Question 78

What is the difference between a ‘writ’ and a ‘warrant’?

Answer 78

Writ = issued by HC
Warrant = issued by the CC