Specialist judges HH Judge Mark Raeside QC, HH Judge Davis-White QC and HH Judge Klein present a guidance note about the form of court orders at the new Business and Property Courts in Leeds
The recent formal launch of The Business and Property Courts in Leeds, which are expected to come into operation on 2 October 2017, presents an opportunity to remind court users about how they can assist the court in the production of orders, with a view to orders being produced as efficiently and quickly as reasonably possible.
This guidance note relates to:
a. Orders which are required to be produced following a hearing (whether in person or by telephone) before a High Court Judge, s.9 Judge or Deputy High Court Judge in one of the courts or lists of The Business and Property Courts in Leeds (which comprise the Chancery Division, the Technology and Construction Court and the Mercantile Court (to be renamed the Circuit Commercial Court)). In this context, hearings include, for example, trials and applications in the applications list
b. Draft consent orders which a Judge is asked to make without a hearing, in proceedings in The Business and Property Courts in Leeds
c. Other draft orders which accompany an application notice, in proceedings in The Business and Property Courts in Leeds, where the applicant requests, in the application notice, that the application is to be determined without a hearing
Nothing in this note is intended to, nor does anything in this note, alter the requirements of the Civil Procedure Rules or the Practice Directions. Court users are still required to comply with the Civil Procedure Rules and the Practice Directions. This note sets out the additional steps which the court expects users to take to assist it in the more efficient production of orders in The Business and Property Courts in Leeds.
Steps to be taken – hearings
Where there is a hearing, the Judge will usually order one of the legally represented parties to serve a copy of the order on the other parties. If the Judge omits to do so, it is the responsibility of the parties to seek such an order from the Judge. It is the responsibility of the party who is required to serve the order to file a draft order.
Following the hearing, the party required to file the draft order must, at the same time, file confirmation from each of the other parties that they agree the form of draft order, unless the court orders otherwise. Such confirmation can be in the form of an email chain showing the agreement of the legal representatives of the parties or the parties themselves.
In rare cases, where agreement as to the form of draft order is not possible, it should be made clear, when the draft order is filed, to what extent there is agreement and to what extent there is disagreement, so that the Judge can consider how to resolve the dispute. If the parties are agreed that the Judge may resolve their disagreement without a further hearing, that fact should also be confirmed to the court.
Steps to be taken – Orders without hearings
In relation to draft consent orders which a Judge is asked to make without a hearing, the filing party must, in addition to filing an electronic copy, also file a paper copy of the draft consent order in the form required by Part 40 of the Civil
Procedure Rules and the filing party must otherwise proceed as if an electronic copy of the draft consent order had not been filed. Additionally, the parties must have agreed which party is to be the serving party.
Any other application where the applicant requests that it is to be determined without a hearing, the applicant must file an electronic copy of the draft order to assist the court.
However, the applicant must also proceed as if an electronic copy of the draft order had not been filed. In drafting the order, the applicant is to assume that, if the court makes an order without a hearing, it will also order that the applicant is to be the serving party.
Steps to be taken generally
Whenever a draft order is filed it must be filed as a Word attachment to an email; however else it is also filed.
It must comply with paragraphs 22.3 and 22.4 of the Chancery Guide (as amended, most recently, in May 2017). A copy of the Chancery Guide is available at www.gov.uk/government/publications/chancery-guide.
In particular, the draft order must:
a. Where the identity of the Judge and the date the order was made is known, state those details, immediately below that part of the heading which identifies the court; for example: “HIS HONOUR JUDGE [NAME] SITTING AS A JUDGE OF THE HIGH COURT [Date]”
b. If made following a hearing, record, in the recitals, if the Judge heard from legal representatives, not only that fact, but their names; for example: “Upon hearing Ms Eve Jones, counsel for the Claimant, and Mr Adam Smith, solicitor advocate for the Defendant”
c. If it is by consent, state that fact
d. As the final paragraph in the body of the order, provide: “This order shall be served by [party] on the [party/parties];”
e. Contain, at the end of the draft order, the following text: “Service of order The court has provided a sealed copy of this order to the serving party: [name of serving party’s solicitors], [postal address], [DX address, if available], [reference]”
An example of these requirements is at paragraph 22.7 of the Chancery Guide.
As regards Tomlin Orders, if the document (the Schedule) recording the parties’ agreement is intended to be confidential, the parties can adopt the practice suggested in the Chancery Guide of identifying the document but not annexing it to the order. In such cases, both the document and where it is held must be clearly identified; for example: “AND the parties having agreed the terms set out in a confidential [schedule/agreement] dated [date], copies of which are held by Smith & Co., the solicitors for the Claimant, and Jones LLP, the solicitors for the Defendant”.
The e-mail address for the filing of electronic versions of draft orders is firstname.lastname@example.org. The subject line of the covering e-mail must contain the following information, in the following order:
a. Claim number
b. Short title of the claim (for example; Smith v. Jones)
c. If the draft order relates to a hearing before a Judge which has already taken place, the following statement: “Draft order for approval – Hearing before [name of Judge] on [date]”. If the draft order relates to an application for the making of a consent order without a hearing, the body of the e-mail must also contain the following information:
a. That attached to the email is a Word version of a draft consent order for a Judge’s approval
b. The date the application or request for the making of a consent order was filed at court
c. How and when the fee for the application or request was paid
If the draft order relates to any other application in respect of which the applicant has requested a determination by a Judge without a hearing, the body of the e-mail must also contain the following information:
a. That attached to the e-mail is a Word version of the draft order which accompanied an application which the applicant has requested, in the application notice, is dealt with without a hearing
b. The date the application notice was filed
c. How and when the fee for the application was paid
If, in a particular case, a party cannot comply with the guidance contained in this note or believes that compliance will be difficult, the party should contact the court by telephone, explaining the difficulty, and the matter will be referred to a Judge. The telephone number for this purpose is: 0113 306 2461.
More generally, if court users experience problems in applying the guidance, they should raise the matter with a member of the Court Users’ Committee for The Business and Property Courts in Leeds.
This article first appeared in Leeds & Yorkshire Lawyer (Issue 147)