Judgements and Orders

Question 1

1. Who draws up judgements and orders

Answer 1

• Every judgement or order will be drawn up the court unless
• Court orders party to draw it up
• party ,with permission of court, agrees to draw it up
• Court dispense with the need to draw it up OR
• It is a consent order under rule 40.6
• Court can order that
• a judgment or an order drawn up by a party must be checked by the court before it is sealed; or
• before a judgment or an order is drawn up by the court, the parties must file an agreed statement of its terms

Question 2

2. Filing of judgement or order when it is to be drawn up by a part

Answer 2

• Where a judgment or an order is to be drawn up by a party
• he must file it no later than 7 days after the date on which the court ordered or permitted him to draw it up so that it can be sealed by the court; and
• if he fails to file it within that period, any other party may draw it up and file it

Question 3

3. Orders made in claims proceeding in the King’s Bench Division at the Royal Courts of Justice, other than in the Administrative Court

Answer 3

• Shall be drawn up by the parties, unless they are made by the court on their own initiative or the court otherwise orders

Question 4

4. Service Of judgements and orders

Answer 4

• Where a judgment or an 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 on the other parties; and
• once it has been sealed, the court must serve a copy of it on each party to the proceedings
• Unless the court directs otherwise, any order made otherwise than at trial must be served on—
• the applicant and the respondent; and
• any other person on whom the court orders it to be served.

Question 5

5. When can court enter an agreed judgement of order

Answer 5

• ourt officer may enter an agreed judgement or order if
• the judgment or order is listed in paragraph (3)
• none of the parties is a litigant in person; and
• the approval of the court is not required by these Rules, a practice direction or any enactment before an agreed order can be made
• If not then any party can instead apply for a judgement or order in the terms agreed
• This can be dealt without a hearing

Question 6

6. List of judgements and orders than can be subject to an agreed order

Answer 6

• Judgement for
• Payment of an amount of money (including sum to be decided by the court)
• Delivery of goods with or without the option to pay the value of the goods instead
• An order for
• Dismissal of proceedings, wholly or in part
• Stay of proceedings, disposing of the proceedings
• Stay of enforcement of a judgement
• Setting aside of a default judgement
• Payment out of money which has been paid into the court
• Discharge from liability of any party
• Payment, assessment or waiver of costs, or such other provision for costs as may be agreed

Question 7

7. Format of an order which is agreed by the parties

Answer 7

• The order which is agreed by the parties
• must be drawn up in the terms agreed;
• it must be expressed as being “By Consent”;
• it must be signed by the legal representative acting for each of the parties to whom the order relates or, where paragraph (5) applies, by the party if he is a litigant in person.

Question 8

8. When does a judgement or order take effect

Answer 8

• A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify

Question 9

9. Time from when interest begins to run

Answer 9

• Where interest is payable on a judgment pursuant to section 17 of the Judgments Act 1838 or section 74 of the County Courts Act 1984, the interest shall begin to run from the date that judgment is given unless—
• a rule in another Part or a practice direction makes different provision; or
• the court orders otherwise

Question 10

10. stay of execution and other relief

Answer 10

• A party against whom a judgment has been given or an order made may apply to the court for—
• a stay of execution of the judgment or order; or
• other relief
• on the ground of matters which have occurred since the date of the judgment or order

Question 11

11. Who can apply to set aside or vary a judgement or order

Answer 11

• A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.

Question 12

12. Time for complying with a judgement or orde

Answer 12

• A party must comply with a judgment or order for the payment of an amount of money (including costs) within 14 days of the date of the judgment or order, unless—
• the judgment or order specifies a different date for compliance (including specifying payment by instalments);
• any of these Rules specifies a different date for compliance; or
• the court has stayed the proceedings or judgment.

Question 13

13. Correction of errors in judgements and order

Answer 13

• The court may at any time correct an accidental slip or omission in a judgment or order.
• A party may apply for a correction without notice.

Question 14

14. Cases where court gives judgement both on claim and counterclaim

Answer 14

• If there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount to pay the balance.
• In a case to which this rule applies, the court may make a separate order as to costs against each party.

Question 15

15. application for Correcting errors in judgements and orders

Answer 15

• The application notice should describe the error and ser out the correction required
• An application may be dealt with without a hearing
• Where applicant so requests
• With consent of the parties or
• Where the court considers hearing not appropriate
• The judge may deal with the application without notice if the slip or omission is obvious or may direct notice of the application to be given to the other party or parties
• 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 16

16. Orders requiring an act to be done

Answer 16

• An order requiring an act to be done (other than payment of money) must specify the time within which it must be done
• Where possible they should give the date and time of the deadline instead of ‘within x number of days’

Question 17

17. What order should read is proceedings are to be disposed by an order in Tomlin form

Answer 17

• “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.”

Question 18

18. Schedule to a Tomlin order

Answer 18

• The terms in the schedule are not part of the order as such.
• So cannot be directly enforced as an order of the court
• The court has no power to alter or vary the terms of the parties agreement and such an approach was contrary to the terms of r.40.6
• the position may be different where one or more parties was a litigant-in-person
• The parties are not required to make the terms of their agreements public.
• The fact that such an agreement is referred to in a court order does not create a right to inspect the agreement
• A provision seeking detailed assessment of a party’s costs must be in the body of the order, not in the schedule, otherwise the costs judge will not be able to carry out the assessment

Question 19

19. Only orders which court will make for a Tomlin order

Answer 19

• that the proceedings be stayed to enable the agreed terms to be put into effect;
• that, if the agreed terms require it, there be payment out of monies paid into court and provision for accrued interest thereon
• each party to have permission to apply to the court if necessary to compel compliance with the terms;
• for costs to be assessed, whether between the parties or out of public funds. UNLESS ALREADY AGREED, IN WHICH CASE THEY CAN GO IN SCHEDULE

Question 20

20. Enforcing a Tomlin order

Answer 20

• Firstly, an application must be made to restore the proceedings under the “liberty to apply” provision on the face of the order.
• Secondly, an order must be obtained on the basis of whether the schedule has been breached, which compels compliance.
• Only then will the enforcing party be able to move onto the court’s enforcement methods.
• The schedule is a simple contract so 6 year time limit applies to breach

Question 21

21. Tomlin order for payment of money

Answer 21

• A Tomlin order is not necessary where all that is required is an order that one party shall pay money to the other
• The court cannot order a party to accept
• Similarly, the court cannot order a party to discontinue a claim: the order should say, for example “Upon the claimant discontinuing the claim and the defendant discontinuing the counterclaim, it is ordered that there be no order for costs.” An order to this effect is not a Tomlin order, but a Tomlin order would not be appropriate in such a case.
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Question 22

22. Restrictions that apply to all orders - including those made by consent

Answer 22

• 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 23

23. Lawyers responsibilities when recording a settlement

Answer 23

• They should ensure:
• 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
• the terms are appropriately enforceable

Question 24

24. Full and final settlement

Answer 24

• Where the whole dispute is settled the compromise agreement will normally be stated to be in ‘full and final settlement’ of the dispute.
• It will mean the whole of the old dispute can no longer be litigated, and is replaced by the terms of the compromise.
• Use of the words makes it difficult to obtain a court order rectifying the agreement.
• If the words are not used it may not be clear that the dispute has been fully settled, and one of the parties may then start or continue proceedings