Summary of notes- judgments, enforcement and appeals PDF

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SA22A Judgments and orders Essential reading CPR: CPR 40–4, 40–9, and 40–13. Practice Directions: PD 40B paragraphs 4 and 8. SA22B Consent and Tomlin orders CPR: 40. The commentary at paragraphs 40.6 of Volume 1 of ‘Civil Procedure’, the White Book (WB) 2020. Paragraphs of The Jackson ADR Handbook, ...

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Civil Litigation

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SA22A Judgments and orders Essential reading • •

CPR: CPR 40.3–4, 40.7–9, and 40.11–13. Practice Directions: PD 40B paragraphs 4 and 8.

SA22B Consent and Tomlin orders • CPR: 40.6 • The commentary at paragraphs 40.6.2 of Volume 1 of ‘Civil Procedure’, the White Book (WB) 2020. • Paragraphs of The Jackson ADR Handbook, Second Edition, 2016 (Jackson): 18.03, 18.06–18.09, 19.02, 19.10–19.13.

Tomlin orders 40.6.2 There are various ways in which a claim can be disposed of when terms of settlement are arrived at. One method is known as the Tomlin form of order, suggested by Tomlin J in Practice Note [1927] W.N. 290, following the decision in Dashwood v Dashwood (1927) 71 S.J. 911. Under such an order the proceedings are stayed on agreed terms to be scheduled to the order. These orders were discussed in Horizon Technologies International v Lucky Wealth Consultants Ltd [1992] 1 W.L.R. 24, PC (see also Green v Rozen [1955] 1 W.L.R. 741). The Tomlin order has always been a useful device. Under the case management system introduced by the CPR, more cases conclude with such an order. Where proceedings are to be disposed by an order in Tomlin form, the order should read: “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.” The appropriate draft for a Tomlin order staying proceedings in the Chancery Division as now set out in para.22.12 of the Chancery Guide (see Vol.2 para.1A-195) was amended by a Chancery Note issued in July 2015. As amended the form takes account of the fact that confidential schedules (if any) are no longer to be filed with the court by reciting that copies of such schedules are held by the parties’ solicitors . The Chancery Note further stated that henceforward, 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.” By a Note approved by the Chief Master on 3 October 2016, and amended on 24 October 2016, it is provided that a Court Associate of the RCJ, Chancery Division, Rolls Building, may approve and seal a Tomlin order complying with the requirements stated in that Note. The Note contains the correct form of wording for a Tomlin order. See further annotation to para.22.15 of the Chancery Guide (Vol.2, para.1A-198). It is important to remember that the terms in the schedule are not part of the order as such. The terms in the schedule cannot be directly enforced as an order of the court. Thus there is no money judgment to be enforced and it does not carry statutory interest under Judgments Act 1838 s.17. In Zenith Logistics Services (UK) Ltd v Coury [2020] EWHC 774 (QB) Warby J deprecated, in the Queen’s Bench Division, the court examining the confidential schedule to a Tomlin Order, although he noted it appeared to be the practice in the Commercial Court. The court had no power to alter or vary the terms of the parties agreement and such an approach was contrary to the terms of r.40.6. He noted, however, that the position may be different where one or more parties was a litigantin-person (see [57] and [67]). He also held that the fact that the schedule to a Tomlin Order was confidential was not a derogation from the principle of open justice. That principle does not require parties to make the terms of their agreements public. That such an agreement is referred to in a court order does not create a right to inspect the agreement (see [65]–[66]). 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 (Horizon Technologies International Ltd v Lucky Wealth Consultants Ltd, op cit.). 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”. 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 i.e., the six-year

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time limit for enforcement applies. Moreover, an application to enforce obligations contained in the schedule is an application for the court to enforce its own order, to which neither CPR r.17.4 or s.35(3) of the Limitation Act 1980 apply. (Bostani v Pieper [2019] EWHC 547 (Comm); [2019] 4 W.L.R. 44 per Jacob J at paras 54–59; and Zenith Logistics Services (UK) Ltd v Coury [2020] EWHC 774 (QB) at [61]). The terms of a compromise embodied in a schedule are susceptible to an application for rectification according to the settled principles for the rectification of instruments (e.g Lloyds TSB Bank Ltd v Crowborough Properties Ltd [2013] EWCA Civ 107). A settlement contained in a Tomlin order must be construed as a commercial instrument. The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language; the inquiry is objective (Sirius International Insurance Co (Publ) v FIR General Insurance Ltd [2004] UKHL 54; [2004] 1 W.L.R. 3251, HL, at [18] per Lord Steyn). In Community Care North East v Durham CC [2010] EWHC 959 (QB); [2012] 1 W.L.R. 338 (Ramsey J), where the submission that the court has a general power to vary the terms of a settlement agreement incorporated in a Tomlin order was rejected (see further para.40.6.3 below), the authorities on the application of contractual remedies to agreements contained in the schedules to such orders (e.g rectification) were explained and applied. Where a claimant in a personal injuries claim is pressing for a provisional damages award and an order permitting variation of the periodical payments, should the contingency arise, a Tomlin order may prove to be a useful device for settling quantum on a conditional basis. That is to say, in such an order the parties may stipulate that the agreed lump sum payable and periodical payments for future care and case management and for future loss of earnings set out in the order would be treated as provisional or variable or otherwise, dependent upon a ruling by the court as to whether a provisional damages claim and an application to vary the periodical payments were appropriate (see e.g Kotula v EDF Energy Networks (EDN) Plc [2011] EWHC 1546 (QB) (Irwin J)). The effect of the terms of compromise recorded in a Tomlin order is that the defendant has irrevocably dedicated the property, the subject matter of the agreed terms, to the purposes of the compromise. The defendant would be required, if necessary by an order, for specific performance, to realise the property as agreed with the claimant. The compromise imposes an immediate trust (Anders Utkilens Rederi A/S v O/Y Lovisa Stevedoring Co A/B [1985] 2 All E.R. 669). If the terms scheduled to a consent order are too vague the court will decline to enforce them under the “permission to apply” provision of the order (Wilson & Whitworth Ltd v Express and Independent Newspapers Ltd [1969] 1 W.L.R. 197). Where the scheduled terms are clear an order to give effect to them can be obtained under the “permission to apply” provision notwithstanding that they go beyond the ambit of the original dispute, could not have been obtained or enforced in the original action and that the obligation did not exist but arose for the first time under the compromise (EF Phillips & Sons v Clarke [1970] Ch. 322). 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. If it is intended to embody terms of settlement which can be enforced as an order the terms need to be in the order itself (not the schedule) and set out clearly. Such an order should not include provision for a stay of the proceedings as there would be no point to such a stay. Where a settlement agreement is embodied in the form of a Tomlin order, but the schedule thereto is disclosed to the judge approving the order, the terms of the agreement will form part of the order (see, e.g Zurich Insurance Co Plc v Hayward [2011] EWCA Civ 641, (where held that, in the circumstances, a consent order concluding a personal injury claim, in which the defendant had pleaded that the claimant’s injuries were exaggerated, did not operate as an estoppel, and the defendant’s later claim against the claimant for fraud was not an abuse of process)). A Tomlin order is not necessary where all that is required is an order that one party shall pay money to the other. The order should say “The defendant will pay to the claimant £x in full and final settlement of his claim by [date].” (Add an order for assessment of costs, if required.) The court cannot order a party to accept so the order should not say, for example, “The claimant will accept £x in full and final settlement of the claim.” Similarly, the court cannot order a party to discontinue a claim: the order should say, for example “Upon the claimant discontinuing the claim and the defendant discontinuing the counterclaim, it is ordered that there be no order for costs.” An order to this effect is not a Tomlin order, but a Tomlin order would not be appropriate in such a case. Practitioners need to decide whether the case requires an order of the court or a Tomlin order with the compromised terms set out in a schedule and take care to draft the order appropriately. The current experience of the courts is that too many proposed orders are having to be returned as being neither enforceable orders nor properly drafted Tomlin orders. A properly drafted Tomlin order is very short and simple (see above). A judge is not concerned with the terms in the schedule; still less is there power to make an order in different terms (Noel v Becker [1971] 1 W.L.R. 355, CA) but, of course, practitioners should ensure that the terms are clear and should consider how the proposed terms would be enforced in the event of default. In Wallace v Brian Gale & Associates [1998] 1 F.L.R. 1091, CA, P’s action for damages for negligent survey of house was compromised under a Tomlin order by which D agreed to carry out remedial work and to pay P’s “costs of this action”. It was held that D’s liability for costs included any subsequent costs (excluding disbursements) incurred by P for carrying the terms of the order into effect. In Islam v Askar, The Times, 20 October 1994, CA, following agreement between P and D, county court proceedings for winding-up of their partnership were stayed by consent. P subsequently discovered that the terms of the schedule to the Tomlin order differed from the terms of agreement. It was held that the court had an inherent jurisdiction to rectify the order. In Allied Irish Bank Plc v Hughes, The Times, 4 November 1994, a Tomlin order was approved by the judge, with alterations made by him for purpose of greater clarity, and entered in court records.

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On application by P to enforce the order it was held that the order was not a nullity as, in the circumstances, D’s consent to it in its altered form could be implied. As to bias of “independent valuer” appointed as expert in Tomlin order, see Hopkinson v Hickton [2016] EWCA Civ 1057. SA22C Enforcement

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(CPR): CPR 70.1–2A, 70.3, 70.4 and 70.6; 71.1–2, 71.6 and 71.8; 72.1–3; 73.3; 83.2; 84.3 and 89.3–4. Practice Directions (PD): PD70 paragraphs 1A.1 and 1.1; PD71 paragraphs 1, 2, 4 and 5; PD72 paragraph 1 and PD73 paragraph 1. The editorial introductions to CPR Parts 71–73, 83–84 and 89 at paragraphs 71.0.1, 72.0.1, 72.2.15, 73.0.1, 73.0.4 (1) and (2), 83.0.2–3, the second paragraph of 83.0.17, 84.0.2–3 and 89.0.1 of Volume 1 of ‘Civil Procedure’, the White Book (WB) 2020. Section 6(1)–(5) of the Attachment of Earnings Act 1971 at paragraph 9B-965 of Volume 2 of ‘Civil Procedure’ the White Book 2020. The commentary at paragraphs 70.3.2 of Volume 1 of ‘Civil Procedure’, the White Book 2020 Paragraphs 20.02, and 20.09 (including Table 1) of The Jackson ADR Handbook (Second Edition, 2016).

The relevant CPR etc provisions cover: • General rules about enforcement (CPR rr.70.1 to 70.4; PD 70 paras 1A.1 & 1.1; WB 83.0.2). • Transfers (for control of goods) (WB 83.0.17). • Orders to Obtain Information from Judgment Debtors (CPR rr. 71.1, 71.2, 71.6 & 71.8; and PD 71 paras 1, 2, 4 & 5; and WB 71.0.1). • Third-Party Debt Orders (CPR rr.72.1 to 72.3; PD 72 para 1; and WB 72.0.1; 72.2.15). • Charging Orders (CPR r.73.3; PD 73 para 1; and WB 73.0.1; 73.0.4(1) & (2)). • Writs and Warrants of Control (CPR rr.83.2; 84.3; WB 83.0.3; 84.0.2; 84.0.3). • Attachment of Earnings (CPR rr.89.3 & 89.4; WB 89.0.1 and Attachment of Earnings Act 1971, s. 6(1)(-(5)). Editorial introduction 71.0.1 Part 71 deals with the procedure usually referred to as “oral examination”. As noted in the “Editorial introduction” to Pt 70, it is for the judgment creditor, not the court, to enforce the judgment. Enforcement can be expensive and abortive enforcement is just throwing good money after bad. Part 71 enables the judgment creditor to obtain information from the judgment debtor for the purpose of being able to better decide which method or methods of enforcement to use (sequentially or simultaneously, see r.70.2). There must, of course, be a judgment: this procedure is not available pre-action. Note the requirements of service in r.71.3 and to pay travelling expenses if requested in r.71.4. Rule 71.8 simplifies and clarifies the procedure if the debtor fails to comply with the order as doubts had been expressed as to whether the former rules were compatible with art.5 of the European Convention on Human Rights. The Court of Appeal has expressed concern about the way Pt 71 has been operated and has given guidance for the benefit of judges asked to make a committal order. See further para.71.8.2. Part 71 is supplemented by a Practice Direction. For a recent example of the operation of Pt 71 concerning the examination of an officer of a company see Vale SA v BSG Resources Ltd (In Administration) [2020] EWHC 2021 (Comm). Editorial introduction 72.0.1 A third party debt order is the name of the enforcement method formerly known as “garnishee proceedings”. Put simply, if a judgment debtor is owed money by a third party the judgment creditor can obtain an order that the third party should pay the judgment creditor. The order is obtained without notice on an interim basis. A hearing follows when the court decides whether or not to make a final third party debt order. 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 Pt 71) 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 (r.72.6). 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 (r.72.8). Rule 72.7 enables the judgment debtor to obtain “a hardship payment order”. Hearings are before a Master or District Judge. Part 72 is supplemented by a practice direction. Debt due to judgment debtor and another 72.2.15 In Hirschon v Evans [1938] 2 K.B. 801 it was held that it was not possible to obtain a garnishee order (now a third party debt order) against a bank account in the joint names of the debtor and his wife. This is in contrast to execution; see para.83.0.15 and Cohen v Cohen (1982) 12 Fam. Law 251.

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Editorial introduction 73.0.1 Part 73 came into force on 25 March 2002 replacing Sch.1 RSC Ord.50 and Sch.2 CCR Ord.31. It contains the necessary procedural rules to give effect to the Charging Orders Act 1979: the Act is in Vol.2, para.9B-1017. Section 1 of the Charging Orders Act 1979 provides that where a judgment debtor is required to pay a sum of money to a judgment creditor then, for the purpose of enforcing that judgment or order, the court may make an order (a “charging order”) imposing on such property of the judgment debtor as may be specified in the order, a charge for securing the payment of any money due under the judgment or order. Such an order must be in accordance with the provisions of the 1979 Act. Broadly, there are four kinds of charging order: a charging order on land (the most common); a charging order on securities; a charging order over a judgment debtor’s interest in a fund in court; and a charge over the judgment debtor’s interest in partnership property. A charging order on land provides the judgment creditor with security equivalent to a mortgage over the land specified in the order. It is, of course, subject to any prior mortgages and charges. The charging order does not affect the accrual of judgment interest on High Court or County Court judgments (Judgments Act 1838: County Courts (Interest on Judgment Debts) Order 1991 (SI 1991/1184)). Subsequently, the judgment creditor can apply for an order for sale so that, subject to prior encumbrances, they can be paid their judgment debt (and accrued interest) out of the proceeds of sale (see r.73.10C). Most charging orders are made in the County Court. The High Court jurisdiction is limited by s.1 of the Charging Orders Act 1979. The only situation where the High Court has exclusive jurisdiction is where the property to be charged is a fund lodged in the High Court. In all other cases where there is a High Court judgment the County Court has a concurrent jurisdiction to make charging orders. In the case of a County Court judgment (or a fund lodged in a County Court), the County Court has exclusive jurisdiction. The jurisdiction of the County Court to make a charging order over land is unlimited. In respect of applications in the County Court, amendments to Pt 73 introduced with effect from 6 April 2016 provide (save where the application relates to a charge over a fund in court) for the centralisation of the processing of charging order applications at the County Court Money Claims Centre and for court officers at that Centre to deal with such applications up to and including the making of interim charging orders in most circumstances (see r.73.3 and r.73.4). An application for a charging order over a judgment debtor’s interest in a fund in court must be made to the County Court hearing centre at which the order or judgment was made (see r.73.3(3)). The order is obtained in a two-stage process similar to the former procedure of a charging order nisi and charging order absolute. An “interim charging order” (see r.73.4) is obtained without notice. Under the new procedure, if the...