#10346 - Judgments And Orders - BPC Civil Litigation

JUDGMENTS AND ORDERS

• Judgment = final decision which disposes of a claim (subject to appeal)

• Order = interim decision

SETTLEMENT - always inform court if settle + file order with listings officer

1. judgment for immediate payment of sum + costs

2. installments: judgment subject to stay of execution (if fail to pay, stay lifted to enforce)

3. consent order: can enforce immediately or on application if breached

4. Tomlin order: proceedings stayed on agreed terms - to enforce, lift stay and obtain order for compliance

5. inform court case settled on terms endorsed on counsel's briefs

WHEN DOES JUDGMENT TAKE EFFECT?

• judgment takes effect when pronounced

WHO DRAWS UP?

• general rule: judgments and orders have to be drawn up and sealed by the court, unless court dispenses with the need to do so

• exceptions

1. QBD, TCC, Commercial court - parties draw up

2. court may order party to draw up

3. party may agree to draw up (with court's permission)

4. court may direct parties to file agreed statement of terms before court draws up

5. entered administratively by consent - parties draw up and file agreement for entry - applies to judgments / orders for: N.B. LiPs CANNOT do this

   1. payment of money

   2. delivery up of goods

   3. payment, waiver or assessment of costs

   4. dismiss whole / part of proceedings

   5. stay on agreed terms, including Tomlin orders

6. entered by consent but requiring court's approval - any party can apply, no hearing - applies to all other consent orders / judgments - must if LiP consent order

If a party is drawing up the judgment…

• have 7 days to file judgment and copies for parties

• effect of failure to draw up - another party may draw up and file for sealing

WHO SERVES?

• once drawn up, court serves sealed copies on A and R

FORM OF JUDGMENTS

• judge’s name at top + judicial title (mandatory unless judgment on admission, default judgment or consent judgment)

• names of parties (same heading as for claim)

• date

• any recitals

• body of the order (often necessary to put court’s words in imperative form)

• where party has asked for permission to appeal, order must state:

  • whether it is final;

  • identify the appeal court

  • and state whether permission to appeal is granted

• payment by installments

  • total amount payable

  • amount of each installment

  • number of installments

  • dates installments to be paid

  • to whom installments may be paid

• consent order

  • state 'by consent'

  • signed by legal reps

  • agreed costs in order OR no order as to costs

• provisional damages

  • type of disease / deterioration

  • period in which C can apply

• sensitive information protected by PII, judgment may be redacted on issue of certificate

RECONSIDERATION OF JUDGMENTS

Before drawn up

• factual errors / accidental slips or omissions (corrected “at any time” - r.40.12(1))

• reconsideration of issues in dispute (this is for appeal)

After drawn up - the slip rule

• accidental slips or omissions

• matters of substance

• court can correct of own motion or party can apply (if obvious error, without notice)

MONEY JUDGMENTS

• must pay within 14 days of judgment (unless court specifies otherwise)

Counterclaims

• court may give separate judgment for claim and counterclaim OR set off claim against counterclaim and enter judgment for balance (can still make separate costs order)

JUDGMENTS REQUIRING AN ACT TO BE DONE

• must specify

  • calendar date

  • time of day

• may specify consequences of failing to comply

COUNSEL'S DUTY IN HEARINGS

• take accurate notes of order and endorse decision on backsheet (not privileged)

• in interim hearings, court will initial / amend evidence in support

RES JUDICATA

• only applies if claims is finally determined

• C is estopped from bringing fresh action if there is an earlier judgment / settlement between the same parties on exactly the same cause of action

• if C brings a fresh action, struck out as an abuse of process

Where the claim is not finally determined (NOT res judicata)

• fresh action only struck out as abuse of process if re-litigating manifestly unfair