Finalising Order

Following Trial

If no other method of trying or determining the matter is set out in the court rules, the action is set down for trial.  The ordinary method of trial is by a judge in open court.  In modern times, juries are involved in very limited categories of civil cases only.

The judge directs the trial and enters judgment as he thinks right, in accordance with the facts and law.  If the trial is with jury, the judge directs judgment in accordance with the jury’s verdict.  If there is no jury, the judge directs judgment in accordance with his determinations and findings of fact.

Drawing up and Entry

The judgment or order is drawn up and entered in books of records.  Where the judgment has been drawn up, it is entered in the books by an officer of the court, generally the judge’s registrar in the higher courts.  The court officer (registrar, clerk etc.) may be empowered to enter judgment pursuant to an order or certificate, and on production thereof, he may do so with the seal of the court.

Particulars of every judgement or order of the High Court, Court of Appeal or by the Supreme Court when so filed shall be deemed to be duly entered, and the entry thereof shall be dated as of the day on which such judgement or order was pronounced or made unless the Court shall otherwise direct.

A duplicate of every judgement or order shall be supplied out of the Central Office without fee to the solicitor or person paying the fee on the said judgement or order; and wherever any rule, order, or the practice of the Court, requires the production or service of the original judgement or order, it shall be sufficient to produce or serve the duplicate.

Finalising Judgement / Order

In the common law courts, judgment was directed to be entered and recorded by the court officer on a certificate. The formal order was drawn up by the party seeking to obtain it in proper form and is given with the certificate and file copies of pleadings to the court offices.  It was prepared in draft form by the party obtaining it and submitted to the officer for entry.

In the courts of equity, the order made in court may be set out in the registry or office of the court in writing.  The person who sought to prosecute it, must obtain a written record and leave with the registrar counsel’s briefs and other documents as may be required.  From those materials and the registrar’s notes, a draft or minute of the judgment was prepared.

Orders made in chamber by a judge or master are recorded in the master’s notes and transmitted to the registrar together with papers that were before the judge or master.  The judgment or order must be drawn up and entered within a specified period.  If not so drawn up, the registrar must report to the judge in writing the reasons why and give us opinions as to which of the parties is responsible for the delay.

Order Structure

Orders are frequently made by consent by way of settlement of cases. See the separate section on settlements.

A judgment or order will usually contain a preliminary or introductory part, showing the form of application, the parties appearing, consents, undertakings and admissions together with a substantive or mandatory part containing the court order.

In more complex cases, there may be a declaration of rights, followed by an order for accounts and inquiries to ascertain or give effect to rights. There may also be consequential directions, including, for example, for the sale of assets, dealing with funds and payment of costs.

Every judgment or order requiring a person to do an act must state the time, or the time after service, within which the act is to be done.  This may be specified to be immediate or forthwith.,

Where an order provides liberty to apply, parties may apply to the court to clarify the extent of the order. In contrast to liberty to re-enter, liberty to re-enter does not permit the matter to be re-litigated. Liberty to re-enter allows the proceedings to be reactivated, typically upon breach of condition.

Issues in Settling Order

The judge may direct the parties to attend before him, unless a satisfactory explanation is given and make such order for cost of drawing up and entering the judgment as he thinks fit.  He may extend the time for appealing against the party in default.

It is the counsel’s duty to take note of the substance of the judgment delivered.  Traditionally, this was endorsed on their brief.  If their endorsements differ, the register’s note is conclusive.

The registrar may require the matter to be mentioned in court if there has been a difficulty in settling the order.  Where the registrar settles the draft of the order and communicates it to the party and no objection is made, it is passed and entered.

If a difficulty or dispute arises, any party may apply to the court by motion specifying the matter to which he objects.  This is a motion to vary minutes.  It may be made at any time before the order is entered, but not afterwards.

On the motion to vary the minutes, the only question is what order was made.  No variation of the order can be made unless all parties consent.  If it is impossible to ascertain what the order is, the matter may need to be reversed.

Drawing Up Order

In drawing up the order, the registrar may, with the consent of the parties, make such alterations as, in his experience, he believes the courts would sanction, and these may then become binding on the parties.

The decision of an appellate court is embodied in its order.

Orders are drawn up except in certain limited categories, where they need not be drawn up unless the judge directs. Exceptions include minor orders such as amendments to pleadings and extensions of time.

Where an order is to be drawn up, it will be put into effect on the production of a note or memorandum of the order, signed by the judge or registrar, as the case may be. The practice varies. In some cases,  the person having custody of the summons, notice or other documents on which the judge or master’s order is endorsed, is to lodge it with the requisite court office.  If it does not do so, any person affected by the order may give him notice requiring him to do so.

Correcting / Changing

In principle, an order may be reexamined and reopened by application to court before judgment is given. This will be exceptional. The evidence adduced must have been in existence at the time of the trial but must be such that it could not be obtained with reasonable diligence. The evidence must be such that it would probably have an important influence on the result, although not necessarily decisive. It must be such as is presumably to be believed but need not be incontrovertible.

Once a final order or judgement has been given the judge has an inherent jurisdiction to revise the decision before the final order is perfected. This may be done to rectify an error or clarify an ambiguity.

However, very strong reasons would be required to change the decision substantively. It would have to be such that it would result in a denial of justice. It may not reintroduce evidence or arguments that were not advanced. A decision will not be lightly reopened. There must be very compelling reasons.

Generally, a final order, once perfected and not appealed, is final and conclusive. The court has no further power to do anything. The court’s functions have been exhausted.