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https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part40/pd_part40b#1.1

Drawing up and filing of judgments and orders 1.1 Rule 40.2 sets out the standard requirements for judgments and orders and rule 40.3 deals with how judgments and orders should be drawn up.

1.2 A party who has been ordered or given permission to draw up an order must file it for sealing within 7 days of being ordered or permitted to do so. If he fails to do so, any other party may draw it up and file it.

1.3 If the court directs that a judgment or order which is being drawn up by a party must be checked by the court before it is sealed, the party responsible must file the draft within 7 days of the date the order was made with a request that the draft be checked before it is sealed.

(emphasis mine)

1.4 If the court directs the parties to file an agreed statement of terms of an order which the court is to draw up, the parties must do so no later than 7 days from the date the order was made, unless the court directs otherwise.

1.5 If the court requires the terms of an order which is being drawn up by the court to be agreed by the parties the court may direct that a copy of the draft order is to be sent to all the parties:

(1) for their agreement to be endorsed on it and returned to the court before the order is sealed, or

(2) with notice of an appointment to attend before the court to agree the terms of the order.

In the point 1.5 if the court order is drawn up by the court, it is to be agreed by the parties.

In the point 1.3 if the court order is drawn by the party, it is checked by the court. There is no mention of another party checking, agreeing, verifying.

In my layman understanding that can create a situation where a party drafting the order is in an advantageous position because they can submit an order, without asking another party for approval.

Me being that "another party" - how to ensure that I also can approve the court order?

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2 Answers 2

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In section 1.3, what is contemplated is that a judge has given a ruling orally from the bench and directed one of the parties, usually the prevailing one, to commit it to writing. The other party can object to the court if the party committing the oral order to writing screws it up and misstates the court's bench ruling. But, we aren't too worried about a party misstating what the judge meant to say in an oral order from the bench that a party commits to writing, because if the order isn't what the judge meant to say, then the judge can decline to sign it in that form.

The party drafting the order has very little discretion since that party is bound and required to simply memorialize what a judge has already decided should be the outcome.

In section 1.5, in contrast, what is contemplated is that the parties have reached a stipulation in open court which the judge has committed to writing and the agreement of both parties is sought to confirm that the written order prepared by the judge to memorialize the stipulation of the parties accurately reflects what was agreed to orally. In this case, the judge is not in as good of a position to be sure that the judge's own written order accurately restates the oral agreement of the parties, because it wasn't the judge's idea in the first place.

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  • The party drafting the order has very little discretion - that is the whole point that I do not agree with. Between the court hearing, drafting order, submitting the order there is usually a few days in between and the exact wording, exact meaning can differ...
    – Silly mistakes in the past
    Dec 6, 2018 at 8:49
  • @MichaelLegalFictionFreeman If the party drafting the order does not faithfully capture the judge's intent, then the other party can object and the judge can whether or not the other party objects, decline to sign it as written. It also isn't at all uncommon for a judge who has received a proposed order from a party to edit it before signing it. The other party, if necessary, can get a transcript of the bench ruling to determine what the judge actually ordered orally, if the parties have differing recollections. If the judge doesn't trust a party to do it right, the judge can use 1.4 instead.
    – ohwilleke
    Dec 6, 2018 at 8:59
  • the other party can object - received court order via post a month later. Initially, I thought it was created by the court (who is meant to be impartial). Only recently realized it was drafted by another party (who has their own agendas) and it contains statements that were not agreed in the court. How do I ensure it does not happen in the future?
    – Silly mistakes in the past
    Dec 6, 2018 at 9:11
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    @MichaelLegalFictionFreeman If it was a stipulation of the parties, section 1.5 should have applied. If it was an order of the court, then it doesn't mater what was "agreed in court". If the order is inaccurate, it is probably possible to file an object to the court to have it modified because it does not accurately reflect the agreement of the parties and to request that the court use Section 1.4 in the future. Of course, if the court disagrees with you that the order was inaccurate, it will tell you to go F- yourself.
    – ohwilleke
    Dec 6, 2018 at 9:18
  • Given the numerous questions you have asked in this forum, I am left with the distinct impression that the court feels that you are a bad actor and that there is considerable evidence to support its conclusion. So, the court may not be inclined to take your objections seriously.
    – ohwilleke
    Dec 6, 2018 at 9:22
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Just to amplify ohwilleke's answer; Section 1.5 applies to a situation where the parties have reached agreement, and the court will seal an order (making the agreement effective) on receiving a note of the terms, signed by both parties.

Section 1.3 applies to the commoner situation where the court has made a ruling without agreement, and it needs to be formalized in an order that can be sealed. This was formerly done by a court official but is now done by one of the parties, usually a lawyer who can be trusted to take a proper note. This draft will be checked by the court (usually a court official, sometimes the judge if so directed) before sealing, so that the sealed order reflects what was actually directed, in the view of the court. Your approval, and what either party thinks should have been directed, are irrelevant.

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  • Thank you for your answer. a lawyer who can be trusted :) That leaves a lot of room for gamesmanship, the party who drafts the order has a significant advantage.
    – Silly mistakes in the past
    Apr 2, 2019 at 12:45
  • @Michael: my experience is otherwise. But if you really believe that, the obvious answer is to behave in such a way that an unbiased observer will consider you more likely to provide a fair, complete and unambiguous draft order than the lawyer on the other side. Your comments on this site are not a good start.
    – Tim Lymington
    Apr 2, 2019 at 21:36
  • One side is a barrister, one side is me. Court chooses to designate a barrister. That's why I need to lawyer up.
    – Silly mistakes in the past
    Apr 3, 2019 at 17:31
  • At last, something we agree on. Given the choice between a professional and an amateur who does not understand the system and dislikes and mistrusts whatever he does not understand, a judge, or any other rational human being, will prefer the professional.
    – Tim Lymington
    Apr 5, 2019 at 15:38

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