draft order

In civil proceedings, draft orders are annexed to application notices to indicate to the Court the terms of the relief that the applicant seeks when filing the application notice. Draft orders are also produced after the Court hands down its judgment after the trial.

Production of orders in draft assist the court direct its mind to the precise relief sought by the applicant. This is not to say that the Court will eventually grant the relief sought in the terms set out in the draft. It is for the Court to decide what order should be granted, if any, after considering the merits of the case and exercising any discretion which it has.

After the court has given its decision in an interim hearing (such as a case management conference), and making its order, it will usually ask the successful party to produce a draft order for approval of the court. If the successful party is not legally represented but the losing party does have legal representation, the solicitor or barrister representing the unsuccessful party is likely to be directed to produce the draft.

Settling the Terms of the Draft

After the parties have agreed the terms of the draft order between themselves, it is submitted to the court for approval and sealing. If there are matters in dispute following the hearing and the terms of the draft cannot be agreed, a short and succinct email should be prepared setting out the differences between the parties, and sent to the judge or the judge’s clerk. Procedures differ depending upon the level of judge in different courts, and even within the High Court.

For instance, emails are usually sent to a judge’s clerk when a hearing was before a High Court Judge. If the hearing was before a Chancery Master the draft order would probably be sent to a general inbound email address. Although most courts and judges are frequent users of email, it should not be assumed that a particular judge would be happy to receive a draft order by email.

It should not be assumed that the court will simply accept the order in the form tendered. It is for the judge to decide the final form in which an order will be made.

Formal Requirements of Orders

Draft orders should be in the form required by the Civil Procedure Rules and set out:

1. The name of the Court in which the order is being made;
2. The claim number;
3. The parties names;
4. The judicial officer making the order;
5. recitals required to give context to the orders being made;
6. the date that the order was made.

Orders made follow the recitals with the words “IT IS ORDERED THAT:”, followed by sequential paragraph numbers.

Although draft orders may be sealed at a later date, court orders are effective from the date they are made unless the order states otherwise.

Although there are standard requirements for the form of court orders, different judicial officers (Masters, Judges, Circuit Judges and District Judges) may have their own individual preferences for things such as the location of the date, the typeface (commonly Times New Roman 11 or Arial 12). Double spacing of paragraphs is highly recommended.