23 Judgments and Orders: Chptr 41

Settlements

- Simplest form of judgment: provides immediate payment of sum agreed together with costs
- Five further way of agreeing terms (in context of agreement reached at door of court):
(i) Judgment on agreed sum, subject to stay of execution pending payment
(ii) Consent order embodying undertakings in series of numbered paras: if breach,
enforcement immediately or by application depending on the term
(iii) Tomlin order: staying claim save for purpose of carrying out terms in schedule
(iv) Consent order staying all further proceedings upon agreed terms: if at court door,
endorsement on counsel brief and court asked to make order on those terms.
Usually only enforced by fresh proceedings
(v) Court informed case settled upon terms endorsed on counsel’s briefs. Enforced by
fresh proceedings.
- Duty to inform the court of settlement: if alerted at least 7 days before, get all or part court
fee back: 100% if more than 28 days; 75% if 15-28; 50% if 7-14 days
- If costs to be assessed by courts, must record as formal order
- Settlements after issuing of proceedings should mention costs and future status of claim
(final judgment, dismissing claim, granting stay, or discontinuing or withdrawing the case). If
claim discontinued, and not barred from issuing proceedings for same claim

Orders made at hearings

- Counsel under duty to take notes of judgment and must endorse a note on backsheet of
brief
- Interim application the master, DJ or J will:
(i) Initial relevant paras of application notice or draft minutes of order; or
(ii) Initial together with making amendments; or
(iii) Endorse the order on the affidavit, ws or application notice

Form of judgments and orders

- Same headnote as claim, but with j’s name

- Any recitals
- Body of order
- Where party asked for permission to appeal, order state whether final, identify the appeal
court and state whether permission was granted.
- Time limits:
(i) Compliance date must be expressed
- Consent orders:
(i) Evidence of the contract
(ii) Must have consideration passing
(iii) Only set aside on grounds of fraud or mistake
(iv) Two way of looking at it:
(a) Evidence of a contract
 (b) ‘without either party agreeing’ (acquiescing?) whereby terms can be altered or
varied by court in same circumstances as any other order
 In family proceedings: derives from order, not agreement of parties (no
jurisdiction to vary consent order). Where order obtained by misrep or
mistake, or fraud remedy is to issue fresh proceedings
(v) Must be expressed as being ‘by consent’; signed by legal reps or by litigants in
person
- Tomlin orders:
(i) Order should be worded:
(a) And, the [claimant] and the defendant having agreed to terms set forth 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. Liberty to apply as to
carrying such terms into effect.
(ii) Used where complex terms or where compromise goes beyond bounds of claim, or
where sought to avoid publicity
(iii) Any payment of money out of court or for payment and assessment of costs must be
contained in body of order (as require action by the court)
(iv) Terms of public part may be varied, if material change of circumstance
(v) Terms in schedule varied by usual contractual principles: fraud, misrep and mistake
(vi) If schedule term breached, two stage enforcement:
(a) Claim restored under liberty to apply and order obtained to compel compliance;
(b) If order itself is breached, enforcement in the usual way
- Money judgments and payment by instalments:
(i) Compliance within 14 days of judgment – unless court directs otherwise (may order
instalments)
(ii) By instalments: state total to be paid, amount of each instalment, number of
instalments and date on which to be paid, and to whom
- Counterclaims
(i) Retains power to order separate costs
- State benefits:
(i) P.i. cases where some or all famages subject to recover under social security,
judgment to set preamble setting amounts awarded under each head of damage
- Provisional damages:
(i) Award has two elements:
(a) Immediate damages in respect of existing injuries;
(b) An entitlement to return to court to apply for further damages if disease
develops
- Conditions for awarding provisional damages:
(i) Four conditions:
(a) Particulars of claim must include claim for provisional damages
(b) Future disease or deterioration must be ‘serious’: arthritis, even with surgery, is
not beyond what is expected so not serious
(c) Must be a ‘chance’ future deterioration ‘will’ be suffered. : if not admitted, must
be proved: chance must be measurable not fanciful (5% if a chance)
(ii) Discretion:
(a) Desirability of putting an end to litigation a d possibility of doing better justice by
reserving right to return to court for further damages
 (b) Provisional damages more appropriate where future deterioration is very
serious
(iii) Provisional damages orders:
(a) Must specify disease or type of deterioration
(b) Specify period within which application mat be made
(c) May be made in respect of more than one disease, may have different
limitations
(iv) Applying for further damages
(a) Must give 28 days notice of intention to ask for further damages
(b) Within 21 days of the 28 days notice, c has to apply to court
- Periodic payments:
(i) Not income but capital, no tax.
(ii) Four types of annuity which qualify:
(a) Basic-term annuity;
(b) An index-linked fixed-term annuity
(c) An annuity for life
(d) And index-linked life or minimum-term annuity
(iii) As tax advantageous, c obtains more favourable result than under lump-sum, d pays
less than conventional lump sum award

General rules relating to drawing up orders and judgments

- Normally court take responsibility for drawing up, but:

(i) In QBD, TCC and commercial court, orders drawn up by parties;
(ii) Court may order party to draw up order
(iii) Party may, with permission of court, agree to draw up
(iv) Court may direct party to draw up order subject to checking by the court before
sealed
(v) Court may direct parties to file an agreed statement of terms of the order before
court itself draws up order
(vi) Entered administratively by consent
- Every judgment or order (unless judgments on admissions, default judgments and consent
judgments) must state name and judicial title of judge
- Party required to draw up 7 days to file document
- Entering administrative consent orders:
(i) Purely administrative process without approval of judge. However, process not used
if there is a litigant in person
(ii) Types of orders:
(a) Judgments for payment of money
(b) Delivery of goods
(c) Dismiss whole or part of proceedings
(d) Stays on agreed terms which dispose of proceedings
(e) Setting aside default judgments
(f) Discharge of liability
(g) Payment, waiver or assessment of costs
- Consent orders approved by the court:
 (a) If order agreed between parties but beyond scope of above or if one party is litigant in
person, will need to be approved by the court
(b) If all parties write to the court, will be taken as sufficient signing
(c) Court may change terms as retains power, but will always take terms provided into
account
- Slip rule may apply