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Notes on enforcing judgments
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1Judgement and Orders
Directions vs Orders vs Judgment Who draws up a judgment/order
General rule: the court (especially in County Court)
Directions CM orders that usually apply to both
sides Exceptions to the general rule (r.40.3)
1. The court orders a party to draw it up
Orders Interim provisions designed to (usually the winner)
regulate position between parties 2. A party, w permission of the court, agrees to
pending the final resolution of the draw it up
case 3. The court dispenses the need to draw it up
Final decisions on the substantive 4. It is a consent order under r.40.6
Judgments
dispute • Usually drawn up by parties
5. If in QBD – parties who draw it up
6. If in Chancery – done by the court
Time limits
r.40.7 A judgment/order takes effect from the day when
it is given/made. (applies to all judgments except those What happens when a party draws up the
against a State) judgment/order (r.40.4)
• Includes judge’s oral judgment
à Party who drew it up must file a copy to be
retained at court & sufficient copies for service on
r.40.3 If court orders/permits a party to draw up the him & on other parties;
judgment/order, that party must file it no later than 7
days after the date the court ordered/permitted him to à once it has been sealed, court must serve a copy
do so. of it on each party to the proceedings.
• If he fails, the other party may draw it up & file it.
NB: there is no real sanction for a party’s failure to draw Unless directed otherwise, any order made outside
up judgment of trial must be served on:
• Applicant & respondent & any other person
the court orders it to be served.
r.40.8 If interest is payable under s.17 Judgments Act
1838 or s.74 County Courts Act 1984 – interest will
begin to run from date of judgment given, unless:
(a) rule or PD has diff provision; or Formalities in judgments & orders
(b) court orders otherwise. • Name & judicial title of judge
à Court may order that interest begin to run from a date • Date of order
before the date of judgment given. • Be sealed w court’s official seal; and
• Set out details of where any appeals should
be made.
r.40.11 Party must comply w judgment/order for
payment of money (inclu costs) within 14 days from
date of judgment/order, unless: Setting aside/Varying judgment vs Appeals
(a) Judgment/order specified diff date of under Slip Rule
compliance; (usually this one – look at NB)
(b) CPR rules specified diff date of compliance; or
Setting aside/Varying Appeal
(c) Court stayed the proceedings/judgment.
NB: party must agree w what the costs should be. If not, Going back to the ori Going to the next highest
someone should assess the costs. judge or a diff judge at the court to overturn the order
same level to reconsider due to error made by
ori decision judge in the lower court
For costs: 14 days will start running after assessment of
costs are completed. (r.44.7) Grounds for setting aside: Grounds for appeal:
FI has come to light; Lower court’s judgment is
Change in circumstances wrong.
such that even tho ori
r.13.3 Party applying to set aside/vary default judgment decision was correct, it is
must act promptly no longer just for it to
continue
, 2
Setting aside/Varying judgements: When does the court have power?
The court made an A party obtains an Default judgment is General power to
order on its own order without notice entered against D for vary/revoke under
initiative under r.3.3 (r.23.9-10) failure to respond to PoC r.3.1(7)
Where the parties are not given a If original order was D must apply to set aside/vary the
chance to make representations made without notice, order promptly (r.13.2-3)
before the court makes an order the other side must
on its own initiative, the order be given the chance
given must give parties a stated to apply to set Test:
period (usually 7 days) after the aside/vary the order (i) D has a real prospect of successfully
service of the order to apply to set within 7 days from defending the claim; or
aside/vary the order. (r.3.3(6)) service of the order. (ii) there is some other good reason for
court to set aside/vary the order
Can only be exercised where there has been a: r.3.1(7) Any power given to the court
(a) Material change in circumstances; or by CPR to make an order includes a
(b) Misstatement of facts leading to the original order; power to vary/revoke that order.
or
(c) Manifest mistake in making the original order
Tibbles v SIG plc [2012] 1 WLR 2591
Power of the court:
Errors in judgments & orders (40B PD4&8) Court can vary its own orders to make the
meaning & intention of the court clear.
Starting point: A party may
Application Hearing?
apply for an accidental slip or
notice?
omission in a judgment/order
to be corrected.
Application can be dealt w/o
hearing if:
Application may be dealt with w/o notice Application notice should (1) Applicant requests so;
if slip/omission is obvious or judge may describe error & set out the (2) With consent of parties; or
direct notice of application to be given to correction required. (informal (3) Court considers hearing not
the other party(s). doc works, i.e. letter) necessary/appropriate
Worked Example If application is opposed, should
be listed for hearing before the
C obtained judgment in HC for damages of £120,000 against D. C’s costs judge who gave the
were summarily assessed in the sum of £54,292. judgment/order.
Judge indicated that C should draw up judgment.
1. What needs to be done to draw up the judgment?
• C must file it no later than 7 days after the court ordered him to do so.
• If he fails, any other party may draw it up & file it.
2. When will the judgment take effect?
• From when the judgment was made/given. (r.40.7)
• Court gives 14 days for compliance.
3. When will the money be payable (complying with a judgment/order)?
• Within 14 days (r.40.11)
4. When are the costs summarily assessed at trial payable? (complying with an order for costs)
• Within 14 days after (r.44.7)
, 3
Settlement
ADR process Settlement Recording a
settlement
Responsibilities of the lawyer to ensure the process is Types of recorded outcome:
completed properly
Ensure Type of ADR Form of recorded
• terms are comprehensive outcome
• each term is clear & sufficiently detailed Arbitration An award
• Client understands & accepts the agreement
o If agreement is subject to client consent, Early Neutral Evaluation Report from neutral TP
must provide client w sufficient info &
advice to ensure client can make Mediation & negotiations Oral agreement
informed decision (success)
• Terms are appropriately recorded and Non-adjudicative ADR Contract compromising
enforceable (success) the dispute
Full and final settlement
à Parties will be barred from bringing a claim in relation Compromise agreements should take effect and
to the same subject matter. be interpreted in the same way as other contracts.
à Important to ensure that all parties agree with the à If the whole dispute is settled for the
intent and extent of the compromise. compromise agreement, it will usually be known
as a “full and final settlement”
à A full and final settlement may affect related claims
by other persons
• i.e. employee & employer settled their asbestos
claim for PI, so his wife was not able to bring a
claim under subsequent Fatal Accidents Act.
Exam Tip:
The best way to record a settlement?
- A detailed written agreement that’s signed by
all the parties, recording the precise things to
be carried out & who is to bear the
responsibility for the costs thereof.
à Exchange of letters & emails work too, but must
include the expression ‘full and final settlement’.
Tomlin Order vs Consent Order (when to use which one?)
Tomlin Order Consent Order
Ideal for parties who wish to have secrecy bc schedule Ideal for simple order for one party to pay money to the
doesn’t have to be made public other (straightforward payment cases)
Ideal for recording long/complex terms – can be worded Terms in the consent order are directly enforceable by the
more flexibly in the Schedule Court whereas Tomlin is not
Only the face of the order can be varied under CPR. Other Application to vary the terms of the provision can be made
terms in the Schedule can only be varied under contract
law
Schedule not limited to orders that a judge had jurisdiction Court can only make an order within its jurisdiction, i.e.
to make in the case order for damage on costs, or declaration even if relevant
terms has been agreed by both parties
Useful for settling quantum on a conditional basis Court can only make an order based on the issues, causes
of action and claims for relief in the SoC.
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