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Changes to Chancery court orders take effect from 2 January 2015 and given the announcement was only made on 23 December the changes may well take many practitioners by surprise in the New Year.
The changes seek to shift the burden of the production and service of court orders from the court to the parties. Parties will therefore be required to provide the court with court orders which have been drawn up and can simply be approved and sealed by the court without amendment. Draft orders are to be lodged in MS Word format so that the court may make minor changes to the document without having to retype it. Any other changes required will result in the order being sent back to the parties for redrafting. The guidance provided by the Chancery Division on the changes includes the form of the order required in Appendix 1 and explanations as to the contents of the order are set out at paras 7 and 8.
The default position will change to be that orders are served by the parties rather than the current position of it being served by the court. The order will state who is to serve the order; although note that a litigant in person will not be nominated as a serving party. The court will send a sealed order to the serving party who will then be responsible not only for serving the order but also to make sure that it is a legible copy.
Back sheets are no longer to be provided and the information which is currently pro-vided on them is to be recorded below the last paragraph in the order. This is to read
Service of the order
The court has provided a sealed copy of this order to the serving party: ABC Solicitors LLP at [address] [reference]
The court has sent sealed copies of this order to [the identity of the parties to whom the order has been sent]
Specific requirements are set out in the guidance in relation to consent orders and this must be followed as a failure to do so means that the order will not be accepted by the court and will simply be returned to the parties. The provisions are:
(a) the word "draft" or "minute" does not appear in the order and the title and preamble are in the correct format;
(b) the signed order, together with a "clean" copy of the order in MS Word format excluding the signature provisions, is submitted by email to ChanceryJudgesListing@hmcts.gsi.gov.uk for Judges' orders or; Chancery.firstname.lastname@example.org for Masters' orders;
(c) the email contains an undertaking that the court fee will be paid within 2 working days;
(d) the order specifies the party who will receive the order for service from the court;
(e) the order includes a service note (see the paragraphs on back sheets/service note) in the correct format.
Note: the lodging of orders by email will not apply to litigants in person.
If the court does not approve the consent order it will normally be returned to the parties for redrafting although the judge or Master may make minor changes.
The confidential schedule should be retained by the parties and NOT be lodged with the court. However, the order must:
Where the court is asked to make an order without the need for a hearing the court will require a copy of the draft order to be lodged with the court by email in MS Word format.
These are dealt with in paras 20 - 21. Responsibility for producing the order will be with the applicant or the party nominated by the court. In circumstances where there is doubt as to who is to produce it eg multiple applications are heard at one hearing then the claimant is to produce the order unless they are a litigant in person. Neutral terms should be used when drafting the order. Where there is any doubt as to the terms of the order clarification from the court should be sought. It is important to be aware that the order is to be provided to the relevant judge's clerk or the Masters appointment team within 2 working days of the hearing and a copy must be provided to the other parties at the same time. If the parties have been unable to agree on the terms of the order, alternatives reflecting the different parties views should be provided within the order to enable the court to determine the points in issue. The order must include a service note which will provide who is to serve the order.
Once the court had settled the terms of the order it will instruct that it be sealed and it will then be sent to the serving party.
If all parties are unrepresented then a court Associate will draw up the order and send a sealed copy to each party. Provisions in relation to orders drawn up by Associates is set out in paras 29 - 30 of the Guidance.
The arrangements in place will remain unchanged.
For full details see the guidance provided by the Chancery Division, see:here
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Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolution lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.
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