Unit 20 Judgments, Orders and Enforcement

Question 1

Is every judgment drawn up by the court?

Answer 1

(1) Except as is provided at paragraph (4) below or by any Practice Direction, every judgment or order will be drawn up by the court unless—
a. the court orders 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 under rule 40.6.
(2) The court may direct that—
a. a judgment or an order drawn up by a party must be checked by the court before it is sealed; or
b. before a judgment or an 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 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
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 and unless the court otherwise orders, every judgment or order made in claims proceeding in the Queen’s Bench Division at the Royal Courts of Justice, other than in the Administrative Court, will be drawn up by the parties, and this rule is modified accordingly.

Question 2

Can a Court OFFICER seal an agreed judgment?

Answer 2

Only if… A court officer may enter and seal an agreed judgment or order if—

a. the judgment or order is listed in paragraph (3);
b. none of the parties is a litigant in person; and
c. the approval of the court is not required by these Rules, a practice direction or any enactment before an agreed order can be made.

Question 3

What are the orders a court OFFICER is able to seal if the other conditions are met?

Answer 3

(3)The judgments and orders referred to in paragraph (2) are—
a. a judgment or order for—
I. the payment of an amount of money (including a judgment or 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 Part 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.

Question 4

Where there isn’t already a consent order, what procedure is in place for a party to apply for one?

Answer 4

5. any party may apply for a judgment or order in the terms agreed.
6. The court may deal with an application under paragraph (5) without a hearing.
7. Where this rule applies—
   a) the order which is agreed by the parties must be drawn up in the terms agreed;
   b) it must be expressed as being “By Consent”;
   c) 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 5

If a consent order is made, what happens to the claim?

Answer 5

The claim can be disposed of when terms of settlement are agreed by way of a Tomlin order. Under such an order the proceedings are stayed on agreed terms to be scheduled to the order.

Question 6

What should a Tomlin order read? (staying a claim once settlement/consent order is agreed)
(read)

Answer 6

“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.”
where in the request for a Tomlin order it is certified by the parties that the order is concerned only with a claim for money (i.e. debt or damages, including any interest and costs) and no other relief is claimed, it may be sealed by the clerk without reference to the Master. To facilitate that new practice solicitors for the parties must include in the request for an order the following wording:
“We certify that the only relief sought in this claim/counterclaim is the payment of money including any interest and costs, and that no ancillary relief has been sought at any stage.”

Question 7

Does the court have the power to vary a parties’ Tomlin order?

Answer 7

No. The court had no power to alter or vary the terms of the parties agreement (although the position could be different where one party was a litigant in person).

Question 8

Is it the Tomlin order or the attached schedule which are confidential from judges?

Answer 8

The Schedule. 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 9

Are Tomlin orders of final settlement between the parties enforceable?

Answer 9

No. Essentially, a Tomlin Order records terms of settlement agreed between the parties, but those terms are not ordered by the court and are not enforceable without a further order.
The terms contained in the schedule are not something for approval by a judge. The judge will, however, approve the order itself. The only orders which the court usually makes are:
i. that the proceedings be stayed to enable the agreed terms to be put into effect;
ii. that, if the agreed terms require it, there be payment out of monies paid into court and provision for accrued interest thereon;
iii. for costs to be assessed, whether between the parties or out of public funds.
Terms in the schedule cannot be enforced on an application to commit: an injunction or an order for specific performance must first be obtained. Hence the need for “Permission to apply for the purpose of carrying such terms into effect”.

Question 10

What is the limitation period for enforcing compliance with the schedule of a Tomlin order?

Answer 10

In a Tomlin order the schedule contains a binding contract between the parties compromising their proceedings. As such it is a simple contract for the purposes of the Limitation Act 1980, the six-year time limit for enforcement applies.

Question 11

What is an advantage of a Tomlin Order?

Answer 11

Indeed, one of the advantages of a Tomlin order is that the parties can include in the schedule provisions which could not have been ordered by the court and which go beyond the limitations of the dispute itself.

Question 12

Can the court order a party to accept a Tomlin order?

Answer 12

No.

Question 13

Can the court order the party to discontinue a claim in light of a Tomlin order?

Answer 13

No.

Question 14

When does a judgment or order take effect?

Answer 14

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 15

Who may apply to have a judgment or order set aside?

Answer 15

A person who is not a party but who is directly affected by the judgment.

Question 16

Can corrections to judgment orders be made?

Answer 16

Yes. 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 17

What happens where the court gives judgment on both a claim and counterclaim? (i.e. an order for and an order against the claimant)

Answer 17

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, 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 18

What is a judgment creditor?

Answer 18

“judgment creditor” means a person who has obtained or is entitled to enforce a judgment or order

Question 19

What is a judgment debtor?

Answer 19

“judgment debtor” means a person against whom a judgment or order was given or made

Question 20

What is a “judgment or order”?

Answer 20

“judgment or order” includes an award which the court has—
i. registered for enforcement;
ii. ordered to be enforced; or
iii. given permission to enforce
as if it were a judgment or order of the court, and in relation to such an award, “the court which made the judgment or order” means the court which registered the award or made such an order;

Question 21

What is a “judgment or order for the payment of money”?

Answer 21

“judgment or order for the payment of money” includes a judgment or order for the payment of costs, but does not include a judgment or order for the payment of money into court.

Question 22

What are the rules to deal with a “disobedient party” i.e. one that has not complied with a mandatory order, an injunction or a judgment or order for the specific performance of a contract?

Answer 22

(2) Subject to paragraph (4), if a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, the court may direct that the act required to be done may, so far as practicable, be done by another person, being—
a. the party by whom the order or judgment was obtained; or
b. some other person appointed by the court.
(3) Where paragraph (2) applies—
a. the costs to another person of doing the act will be borne by the disobedient party;
b. upon the act being done the expenses incurred may be ascertained in such manner as the court directs; and
c. execution may issue against the disobedient party for the amount so ascertained and for costs.
(4) Paragraph (2) is without prejudice to—
a. the court’s powers under section 39 of the Senior Courts Act 1981; and
b. the court’s powers to punish the disobedient party for contempt.

Question 23

What judgment value may ONLY be enforced by the county court?

Answer 23

Only where the sum which it is sought to enforce is less than £600 or the judgment arises out of an agreement regulated by the Consumer Credit Act 1974 must the judgment be enforced in the County Court.

Question 24

What judgment’s must be enforced by the High Court?

Answer 24

Judgments of more than £5,000.00 in value, although any judgement over £600.00 CAN be transferred to the High Court for enforcement (unless agreement regulated by the consumer credit act)

Question 25

What enforcement is available to the court id a judgment is made against someone who is NOT party to proceedings?

Answer 25

If a judgment or order is given or made in favour of or against a person who is not a party to proceedings, it may be enforced by or against that person by the same methods as if he were a party.

Question 26

What is the effect of setting aside a judgment or order?

Answer 26

If a judgment or order is set aside, any enforcement of the judgment or order shall cease to have effect unless the court otherwise orders.

Question 27

Does an application for an order to attend court to discuss judgment require notice?

Answer 27

No. A judgement debtor may apply for an order requiring a judgment debtor to attend court to discuss their means and enforcement of the order, without notice.
The application can be made by a court officer without a hearing.

Question 28

Does an application for a third party debt order require notice?

Answer 28

No. It may be made without notice.

Question 29

Does an application for a charging order require notice?

Answer 29

No. It may be made without notice.

Question 30

What are the four different types of writ or warrant?

Answer 30

a. writs and warrants of control;
b. writs of execution;
c. warrants of delivery;
d. warrants of possession.

Question 31

In what circumstances must a writ or warrant NOT be issued without leave of the court?

Answer 31

A relevant writ or warrant must not be issued without the permission of the court where—
a. six years or more have elapsed since the date of the judgment or order;
b. any change has taken place, whether by death or otherwise, in the parties—
I. entitled to enforce the judgment or order; or
II. liable to have it enforced against them;
c. the judgment or order is against the assets of a deceased person coming into the hands of that person’s executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets;
d. any goods to be seized under a relevant writ or warrant are in the hands of a receiver appointed by a court or sequestrator;
e. under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled (other than where non-compliance with the terms of suspension of enforcement of the judgment or order is the failure to pay money); or
f. the permission sought is for a writ of control or writ of execution, and that writ is to be in aid of another writ of control or execution.

Question 32

What is a third party debt order?

Answer 32

A bank account in credit is a debt due by the bank to its customer. Consequently a judgment creditor who has the bank details of the judgment debtor (possibly as a result of obtaining information pursuant to) can obtain a third party debt order against the bank.
The procedure requires the third party bank or building society to search and disclose information to the court and judgment creditor. Any third party, or judgment debtor, who objects to the making of the order must file and serve written evidence stating the grounds for the objection.

Question 33

Is it possible to obtain a third party debt order against a joint account?

Answer 33

No. Not if innocent party, i.e. the judgment debtor’s joint account with his wife.

Question 34

How is a charging order obtained?

Answer 34

The order is obtained in a two-stage process similar to the former procedure of a charging order nisi and charging order absolute.

Question 35

Is judgment enforced automatically?

Answer 35

No. It is still a feature of the civil justice system that judgments are not enforced automatically by the court. It is for the judgment creditor to decide when and how to enforce the judgment. (Unless order from the Court of Appeal).

Question 36

What is the distinctions in respect of priority of writs and warrants of control?

Answer 36

The priority of a writ of control is determined by when it is delivered to the relevant enforcement officer, whereas the priority of a warrant of control is determined by reference to the date upon which it was issued.

Question 37

Can a court set aside a writ of control?

Answer 37

Yes.

Question 38

At various junctures the enforcement agent may make applications to the court. These are:

Answer 38

• to shorten the period for notice to the debtor of enforcement
• to extend the prescribed period within which the enforcement agent may take control of goods
• to take control of goods during prohibited periods
• to enter, re-enter or remain on premises outside permitted hours
• to re-enter premises giving less than the minimum period of notice
• to issue a warrant in respect of specified premises and to use reasonable force to enter premises
• to use reasonable force in respect of goods on a highway
• to sell other than by public auction
• to deal with abandoned goods
• to obtain exceptional disbursements.

Question 39

Does an appellant or respondent require permission to appeal?

Answer 39

Yes. An appellant or respondent requires permission to appeal where the appeal is from a decision of a judge in the County Court or the High Court, or to the Court of Appeal from a decision of a judge in the family court.
Exceptions are where they are appealing against, a committal order; a refusal to grant habeas corpus; or a secure accommodation order made under section 25 of the Children Act 1989 or section 119 of the Social Services and Well-being (Wales) Act 2014.

Question 40

Where should an application for appeal be made?

Answer 40

An application for permission to appeal may be made—

a. to the lower court at the hearing at which the decision to be appealed was made; or
b. to the appeal court in an appeal notice.

Question 41

What happens where the lower court refuses an application for permission to appeal?

Answer 41

Where the lower court refuses an application for permission to appeal—
a. a further application for permission may be made to the appeal court; and
b. the order refusing permission must specify—
I. the court to which any further application for permission should be made; and
II. the level of judge who should hear the application.

Question 42

Are applications to appeal dealt with orally or on paper?

Answer 42

Unless it is an application to the court of appeal it will be dealt with on paper. Then, where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at an oral hearing.
However, Where in the appeal court a judge of the High Court, a Designated Civil Judge or a Specialist Circuit Judge refuses permission to appeal without an oral hearing and considers that the application is totally without merit, the judge may make an order that the person seeking permission may not request the decision to be reconsidered at an oral hearing.

Question 43

What is the permission to appeal test for FIRST appeals?

Answer 43

Permission to appeal may be given only where—
a. the court considers that the appeal would have a real prospect of success; or
b. there is some other compelling reason for the appeal to be heard.
An order giving permission under this rule may—
a. limit the issues to be heard; and
b. be made subject to conditions.

Question 44

What is the permission to appeal test for SECOND appeals?

Answer 44

1. Permission is required from the Court of Appeal for any appeal to that court from a decision of the County Court, the family court or the High Court which was itself made on appeal, or a decision of the Upper Tribunal which was made on appeal from a decision of the First-tier Tribunal on a point of law where the Upper Tribunal has refused permission to appeal to the Court of Appeal.
2. The Court of Appeal will not give permission unless it considers that—
   a. the appeal would—
   I. have a real prospect of success; and
   II. raise an important point of principle or practice; or
   b. there is some other compelling reason for the Court of Appeal to hear it.
   An order giving permission under this rule may—
   a. limit the issues to be heard; and
   b. be made subject to conditions.

Question 45

What is a respondent’s notice?

Answer 45

A respondent may file and serve a respondent’s notice. A respondent who—
a. is seeking permission to appeal from the appeal court; or
b. wishes to ask the appeal court to uphold the decision of the lower court for reasons different from or additional to those given by the lower court,
must file a respondent’s notice.

Question 46

Can a transcript of a lower court trial be obtained at public expense for an appeal?

Answer 46

1. Yes. Subject to paragraph (2), the lower court or the appeal court may direct, on the application of a party to the proceedings, that an official transcript of the judgment of the lower court, or of any part of the evidence or the proceedings in the lower court, be obtained at public expense for the purposes of an appeal.
2. Before making a direction under paragraph (1), the court must be satisfied that—
   a) the applicant qualifies for fee remission or is otherwise in such poor financial circumstances that the cost of obtaining a transcript would be an excessive burden; and
   b) it is necessary in the interests of justice for such a transcript to be obtained.

Question 47

Does an appeal operate as a stay of proceedings?

Answer 47

No, unless—
a. the appeal court or the lower court orders otherwise; or
b. the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal,
an appeal shall not operate as a stay of any order or decision of the lower court.

Question 48

What are the appeal court’s powers?

Answer 48

The appeal court has power to—

a. affirm, set aside or vary any order or judgment made or given by the lower court;
b. refer any claim or issue for determination by the lower court;
c. order a new trial or hearing;
d. make orders for the payment of interest;
e. make a costs order.

Question 49

What inferences of fact can the appeal court draw?

Answer 49

The appeal court may draw any inference of fact which it considers justified on the evidence.

Question 50

In what circumstances should the appeal court allow an appeal?

Answer 50

The appeal court will allow an appeal where the decision of the lower court was—

a. wrong; or
b. unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

Question 51

Are appeals reviews or re-hearings?

Answer 51

Reviews. Rule 52.21(1) provides that every appeal will be limited to a review of the decision of the lower court, unless (a) a practice direction makes different provision or (b) in the circumstances of an individual appeal “it would be in the interests of justice to hold a re-hearing”.

Question 52

Will the court of appeal receive “fresh evidence”?

Answer 52

Unless the appeal court orders otherwise, it will not receive evidence (oral or written) which was not before the lower court. Evidence not before the lower court but proffered to an appeal court is generally known (colloquially) as “fresh evidence”.
Matters which the Court of Appeal must consider in the exercise of its discretion, when deciding whether to receive fresh evidence (only consider, not satisfy):
1. the evidence could not have been obtained with reasonable diligence for use at the trial;
2. the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;
3. the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible.

Question 53

If fresh evidence to the appeal indicates the original judgment was obtained by fraud, will the court of appeal admit fresh evidence? (read)

Answer 53

Where the proposed fresh evidence indicates that the original judgment was obtained by fraud, the traditional view is that the applicant should not be permitted to raise this on appeal, but rather should commence a fresh action to set aside the original judgment for fraud.
In Noble v Owens however, the Court of Appeal proposed a new and less expensive procedure. The Court of Appeal should refer the fraud issue for trial before a High Court judge. In that case the fraud issue was remitted to the original trial judge. An appeal court will be particularly acute to consider questions of admitting additional evidence when the public interest in the prevention of fraudulent road traffic claims comes before it (Singh v Habib [2011] where additional evidence relevant to that interest admitted). In that case, the Court of Appeal ordered a retrial in a case where fresh evidence demonstrated that the accident may never in fact have occurred. In determining whether solicitors, in modest road traffic personal injuries claims, had shown reasonable diligence in obtaining evidence, the appeal court will take into account the requirement that solicitors were expected to conduct such cases in a proportionate manner, mindful of the need to control costs. It would be “a counsel of perfection” to suppose that the solicitors for the insurers should have gone in search of the evidence material to the alleged fraud.

Question 54

Where should a party apply for permission to appeal?

Answer 54

An application for permission to appeal may be made—
• (a) to the lower court at the hearing at which the decision to be appealed against is given (in which case the lower court may adjourn the hearing to give a party an opportunity to apply for permission to appeal); or
• (b) where the lower court refuses permission to appeal or where no application is made to the lower court, to the appeal court.

Question 55

Can an appeal be made against a case management decision?

Answer 55

Yes. Where the application is for permission to appeal from a case management decision, the court dealing with the application may take into account whether—
• (a) the issue is of sufficient significance to justify the costs of an appeal;
• (b) the procedural consequences of an appeal (e.g loss of trial date) outweigh the significance of the case management decision;
• (c) it would be more convenient to determine the issue at or after trial.