Civil Trial, Judgements and Order Flashcards
Where a C obtained judgement against D in CC for 27k and the claim heard by DJ. How long will D be given to pay judgement Debt
Where judgment has been obtained, the judgment or order may specify when payment shld be made (CPR 40.11)
If it does not CPR 40.11- takes effect and payment must be made within 14 days of the date of the judgement, unless any rules specify a different date for compliance
Who will draw up the order made by the court. Is there eexcedtion to the rule
CPR 40.3- Court usually draw up the order unless:
a) the court order a party to draw it up
b) a party with the permission of the court agrees to draw it up
c) the court dispenses with the need to draw it up or
d) It is a consent order
Who will serve the order?
CPR 40.4
Where a judgement or an order has been drawn up by a party and is to be served to 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 on other parties AND
-> once it be sealed, the court must serve a copy of it on each party to the proceedings.
Where a party is worried to be able to recover interest on the judgment debt?
CPR 16.4(2), intrest will normally be awarded, provided IT HAS BEEN PLEADED IN POC
CPR 40.8- interest is payable from THE DATE OF JUDGEMENT
Intrest prior to judgement is claimed
CC: S.69 CCA
HC: S.35 SCA
What is a Tomlin Order, how it works?
Tomlin Order
- A Tomlin Order is a type of consent order and one of the methods that can be utilised by parties to record the terms of settlement between them in cases where court proceedings have already been commenced
How Work?
Two Parts 1) Order, 2) Attached Schedule
1) Order:
-A provision that the court proceedings be stayed, save for purposes of carrying out terms of settlement order
-Liberty to apply to court in order to compel compliance
-A provision dealing with the costs of the proceedings and how they are to be dealt with
Adv:
The advantage of a Tomlin order over a consent order is the schedule. This enables the parties to agree terms of settlement that would not be within the court’s jurisdiction to order (enabling the parties to be more creative when it comes to settlement).
The other benefit is that the schedule can be kept CONFIDENTIAL
How is a Tomlin Order enforced
It is a two-stage process.
The SUBSTANTIVE TERMS (those on the face of the order itself) 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 SCHEDULE TERMS being breached, enforcement is a two-stage process. First, the claim must be restored under the ‘liberty to apply’ clause (which is contained in the order part of the Tomlin order), and an order is then obtained to compel compliance with the term breached.
A failure to comply with that order may be a contempt of court.
In MT, is judge at liberty to dispel with counsels opening address to the court and run the timetable for the hearing
YES PD 29
- Para 10.2 - Judge may dispense with an opening address
-Para 10.3 - The judge may confirm or vary any timetable given prev, or if none has been given set his own
What methods of enforcing agm ( particularly arbitration)
Stage 1: s. 66(1) AA 1996, the winner obtains leave to enforce the award as if it were a judgment.
Stage 2: s. 66(2) AA 1996, the winner enters judgment in the terms of the award. The judgment is portable and may be registered in other jurisdictions for enforcement.
CPR 62.18- deal with an application for permission to enforce an award under S.66 of the act.
Provides that an application for permission to enforce an award in the same manner as a judgment or order MAY BE MADE WITHOUT NOTICE IN ARBITRATION CF.Must be supported with written evidence.
ARBITRATION CF
In England and Wales, a claimant must serve an arbitration claim form on the defendant within one month of the date the form is issued. The claimant must also file a certificate of service within seven days of service
As a lawyer, recording settlement terms is the part of ADR process, what steps need to be completed properly?
Paragraph 18.03 in Jackson ADR [page 254] sets out the relevant discussion.
Broadly, the lawyer needs to ensure that:
-the terms are comprehensive;
-each term is clear and sufficiently detailed;
-the client understands the agreement;
-the client accepts the agreement. Where the agreement is subject to client consent, the lawyer must provide the client with sufficient information and advice to ensure that the client takes an informed decision as to whether to accept the agreement;
-the terms are appropriately recorded (agreement/court order).
-the terms are appropriately enforceable.
Rmbr that the court can make a separate order as to costs against the C and the D for lets the (claim and the counterclaim).
The court can net one off aginst the other as well, it can still award costs separately on claim and counterclaim.
Where there is a minor error lets say name of the the person in the judgment, does the person need to apply to the court with notice to fix the error?
NO THEY DONT HAVE TO APPLY NOTICE TO THE COURT.
The question concerns the slip rule which covers the correction of errors in judgment and order (CPR 40.12)
See also PD 40B para 4 [vol 1, para 1321] which provides for:
(a) an application notice (which may be informal);
(b) which can be dealt with without a hearing; and
(c) the judge may deal with the application without notice.
Be very careful an identify is the person a litigant in person (no rep), if that the case, where proceedings dismissed. D carefully agrees the terms of the order with the C rep,
THE COURT OFFICER, CANT ENTER AND SEAL THE ORDER AS ONE OF THE PARTEIS IS A LITIGANT IN PERSON.
CPR 40.6(1) and 40.6(2)
V IMP
Where C bring claim against D. And the C witness has provided WS and verified by statement of truth. The witness then says cant go trial. C then asks can he rely on WS of the witness at trial?
Since the WS has been served to D and verified by statement of truth, if the D puts the statement as HEARSAY evidence, then C MUST CALL WITNESS TO GIVE ORAL EVIDENCE (CPR 32.5)
A Witness is permitted to amplify his WS, where new matters have arisen since his last WS was served
CPR 32.5(3)
-Witness may with permission amplify his WS and give evidence in relation to new matters which arisen since the WS was served.
There must be “GOOD REASON NOT TO CONFINE THE EVIDENCE OF THE WITNESS TO THE CONTENTS OF HIS WS”
The D then can cross-examine the C on these new allegation, and so any prejudice to them is likely to be limited.
