#16073 - Judgments And Orders - BPC Civil Litigation

Judgements & Orders including Tomlin Orders

(CPR 40: judgments & Orders)

40.3, Drawing up and filing of judgments and orders

• (1) Except as provide at (4) below [claims in QBD at RJC] or by any PD, every judgment or order will be drawn up by the court UNLESS:

  • (a) the court orders a party to draw it up; or

  • (b) a party, with 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 (under r40.6, below)

• (2) The court may direct that:

  • (a) a judgment or order drawn up by a party must be checked by the court before it is sealed; OR

  • (b) before a judgment or order is drawn up by the court, the parties must file an agreed statement of its terms.

• (3) Where a judgment or an order is to be drawn up by a party:

  • (a) he must file it no later 7 DAYS AFTER the date on which the court ordered or permitted him to draw it up so that it can be sealed by court;

  • (b) if he fails to file it within that period any other party may draw it up and file it.

• (4) Except for orders made by the court of its own initiative; every judgment or order made in claims proceeding in the QBD at the RCJ, other than in the Administrative Court, will be drawn up by the parties; and rule 40.3 is modified accordingly.

  • UNLESS the court orders otherwise.

40.4, Service of judgments and orders

• (1) Where a judgment/order has been drawn up by a party, and is to be served by the court:

  • (a) 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

  • (b) once it has been sealed, the court must serve a copy of it on each party to the proceedings.

• (2) Unless the court directs otherwise, any order made otherwise than at trial must be served on:

  • (a) the applicant and the respondent; and

  • (b) any other person on whom the court orders it to be served.

• [[R6.21: sets out who is to serve a doc other than the claim form]]

40.6, CONSENT judgments and orders

• (1) This rule applies where all the parties agree the terms in which a judgment should be given or an order should be made.

(2) – (3) [[Administration consent orders]] where court can enter & seal an agreement judgment/order without application

• (2) a court officer may enter and seal an agreed judgment/order IF (i.e. NO application is required IF):

  • (a) the judgment/order is listed in para (3); and

  • (b) none of the parties is a litigant-in-person; and

  • (c) the approval of the court is not required (by these rules/a PD/any enactment) before an agreed order can be made.

• (3) The judgments/orders referred to in (2) are:

  • (a) a judgment/order FOR:

    • (i) the payment of an amount of money (including a judgment/order for damages or the value of goods to be decided by the court); OR

    • (ii) the delivery up of goods with or without the option of paying the value of the goods or the agreed value..

  • (b) an order for:

    • (i) the dismissal of any proceedings (wholly or in part);

    • (ii) the stay of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the order or elsewhere;

    • (iii) the stay of enforcement of a judgment, either unconditionally or on condition that the money due under the judgment is paid by instalments specified in the order;

    • (iv) the setting aside under Pt 13 of a default judgment which has not been satisfied;

    • (v) the payment out of money which has been paid into court;

    • (vi) the discharge from liability of any party;

    • (vii) the payment, assessment or waiver of COSTS, or such other provision for costs as may be agreed.

• (4) r40.3 [drawing up & filing of judgments/orders] applies to judgments & orders entered & sealed under para (2), as it applies to other judgments and orders.

(5) Otherwise must make an application for a judgment/order in the agreed terms, to be approved by the court

• (5) Where para (2) does NOT apply [[i.e. if (a) judgment is not listed in para (3) and/or (b) one party is a litigant in person and/or (c) court’s permission is required for an agreed order]] any party may APPLY for a judgment/order in the terms agreed.

• (6) the court may deal with an application under (5) without a hearing

• Claims by/on behalf of/against a child or protected party -> no settlement, compromise, payment, or acceptance of money paid into court is valid without approval of the court.

(7) where this rule applies form/content of the Consent order::

• (a) the order which is agreed by the parties must be drawn up in the terms agreed;

• (b) it must be expressed to be as being “By Consent”;

• (c) it must be signed by the legal rep acting for each of the parties to whom the order relates;

  • OR, where para (5) applies [application for agreed judgment/order] by the party if he is a litigant in person.

40.7, When Judgment or order takes effect

• (1) a judgment or order takes effect from the day when it is given or made [i.e. not the date it’s served]; OR such later date as the court may specify.

• (2) this rule applies to all judgments and orders EXCEPT those to which 40.10 [judgment against a State] applies

40.8, Time from which interest begins to run

• (1) Where interest is payable on a judgment under s17 Judgments Act 1838 or s47 County Courts Act 1984 the interest shall begin to run from the date that judgment is given:

  • UNLESS:

  • (a) a rule in another part or a PD makes different provision; OR

  • (b) the court orders otherwise.

• (2) The court may order that interest shall begin to run from a date before the date that judgment is given.

40.8A, Stay of execution and other relief

• Without prejudice to r83.7(1), a party against whom a judgment has been given, or an order made, may apply to the court for:

  • (a) a stay of execution of the judgment/order; OR

  • (b) other relief

  • On the ground of matters which have occurred since the date of the judgment/order;

  • And the court may by order grant such relief & on such terms as it thinks just.

40.9, Who may apply to set aside or vary a judgment/order

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

40.11, Time for complying with a judgment/order

• A party must comply with a judgment/order for the payment of money (including costs), within 14 DAYS of the date of the judgment/order, UNLESS:

  • (a) the judgment/order specifies a different date for compliance (including specifying payment by instalments);

  • (b) any of these Rules specifies a different date for compliance; OR

  • (c) the court has stayed the proceedings or judgment.

• (Parts 12 and 14 specify different dates for complying with certain default judgments and judgments on admissions).

40.12, Correction of errors in judgments/orders [the SLIP rule, only for accidental slips or omissions]

• (1) The court may at any time correct an accidental slip or omission in a judgment/order.

• (2) a Party may apply for a correction, without notice.

PD40B, para 4, Correction of error in judgments/orders

• (1): where a judgment/order contains an accidental slip or omission a party may apply for it to be corrected.

• (2): The application notice:

  • May be an informal document, eg a letter;

  • Should describe and error and set out the correction required.

• An application (for a correction) may be dealt with without a hearing WHERE:

  • (1) 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.

• (3) the judge may deal with the application without notice iF the slip/omission is obvious;

  • OR he may direct notice of the application to be given to the party/parties.

• (4) if the application is opposed It should, if practicable, be listed for hearing before the judge who gave the judgment/made the order.

• (5): the court has an inherent power to vary its own orders, in order to make the meaning and intention of the court clear.

40.13, Cases where court gives judgment both on claim and counterclaim

• (1) This rule applies where the court gives judgment for specified amounts BOTH for the Claimant (on his claim) AND against the claimant (on a counterclaim).

• (2) If there is a balance in favour of one of the parties court may order the party whose judgment is for the lesser amount to pay the balance. (i.e. rather than giving separate judgments).

• (3) Where this applies, the court may still make a separate order as to COSTS against each party.

PD40B, para 8, Orders requiring an Act to be Done

• (1) An order which requires an act to be done (other than a judgment/order for the payment of an amount of money) MUST specify the time within which the act should be done.

• (2) the consequences of failure to do an act within the specified time may be set out in the order. The wording of the following examples suitably adapted must be used:

  • (1) Unless the [claimant][defendant] serves his list of documents by 4.00pm on Friday, January 22, 1999, his [claim][defence] will be struck out and judgment entered for the [defendant][claimant]; OR

  • (2) Unless the [claimant][defendant] serves his list of docs within 14 days of service of this order his [claimant][defence] will be struck out and judgment entered for the [defendant][claimant].

  • The first example should be used wherever possible (i.e. specifies the date and time more precisely)

Tomlin order:

• 2 parts: (1) the BODY of the order; (2) the SCHEDULE to the order.

• Chancery Guide, form of Tomlin Order

  • All Tomlin Orders must be headed ‘Tomlin Order’ (not simply ‘consent order’).

• BODY contains:

  • (1) that all further...