Judgements

Nature of Judgement

A judgment or order in the broader sense, includes all decisions by the judge, master or registrar on questions and issues that arise between the parties in course of proceedings.  In the present context, judgments and orders refer to final orders in civil cases, which decide the claim in dispute between the parties.

There is distinction between a judgment “in personam” and a judgment “in rem”.  In the vast majority of cases, the judgment is “in personam” and binds the parties to the dispute only.  A judgment in rem determines the status of a person or thing or the transfer of a thing.  This is in contrast to a judgment on the interests of a  party to litigation in that thing.

All judgments that are not “in rem” are judgments in personam. A judgment in personam (between parties)  decides the rights of parties as between each other in relation to the particular matter in dispute.  This may be a civil claim such as in tort or for breach of contract. It may relate to property.

A judgment or order may be given at the trial or hearing of an action, or on an appeal.  In may be given in the case of an action commenced by writ / summons, as a result of the consent of the parties, admissions, on default of appearance or defence or after trial of the matter.

Final and Interlocutory

A judgment or order which determines the matter in question may be referred to as a final judgment or order. A final judgment or order is that by which a pre-existing right, obligation or liability or its absence, is ascertained, established and definitively determined.  An order may be final, although it is subject to appeal.  It may be final even though it directs further enquires or deals only with costs.

A judgment dismissing an action may be final but it may given subject to a direction that dismissal is without prejudice to the claimant’s right to bring another action.

An order which does not deal with the final and ultimate rights and obligations of the parties, usually made before the judgment and the  final decision on the matter in dispute, is referred to as an interlocutory order. Such orders and determinations commonly deal with matters of interim measures and procedural steps.

In almost all cases, there is a right of appeal from a final judgment to an appeal court.  Generally, there is no right of appeal against an interlocutory order without leave of the court or the appellate (appeal) court.

Declaratory

A declaratory judgment declares the rights of the parties, without making a specific order against one or other.  The court may make a binding declaration of rights. It has a general power to make a declaration at the instance of a party who is interested in the subject matter of the declaration, notwithstanding that no application for relief has been made or that it has been abandoned or refused.

The declaration must relate to some legal right and confer a benefit on the claimant.  It may not be given where statutory remedies are prescribed and do not include a declaration.  A declaration may be appropriate if damages alone are not adequate.

The power to make a declaratory judgment is discretionary.  It must be exercised judiciously and with due care and caution, having regard to the circumstances.  It should not be granted unless all the appropriate parties are before the court.

A declaratory judgment may be appropriate against a public or State body.  Formerly, no injunction or order would issue against the Crown. In these cases, declaratory orders were appropriate given the duty of public organs to observe a law.  Declaratory order remain an important feature of litigation against public bodies, notwithstanding the almost total erosion of State immunity. Public bodies, being creatures of law, are inherently bound to observe the law.

Default Judgement I

In certain classes of case, judgment may be obtained in default of appearance or defence, as of right.  A final judgment may be thereby given in a claim for liquidated demand.   These are principally cases arising from debts and other claims for liquidated fixed / predetermined or determinable sum.  Where the claim is for unliquidated damages only or detention of goods, an interlocutory judgment may be entered subject to assessment of damages.

In cases where a right to judgment in default of appearance is not allowed as a right, leave of the court is required for final judgment in default, in the forming cases:

• action by a moneylender;
• Consumer credit cases;
• action relating to mortgages including for possession, redemption or conveyance;
• Civil proceedings against a State.

In some cases where a judgment in default of appearance is not given as a right, a judgment may, by leave of the court, be entered on proof that the defendant is in default of appearance.

If the defendant appears, but does not deliver a defence in time in an action for a debt, liquidated claim, some unliquidated claims, detention of goods or recovery of land,  there is a procedure to obtain judgment either as of right or by leave, depending on the nature of the claim.

Default Judgement II

If the claim is for a debt or liquidated sum, final judgment may be entered on expiration of the time for entry of a defence.  If the claim is for unliquidated damages  or for detention of goods, an interlocutory judgment may be made in favour of the claimant, with an order for assessment of damages.

In other cases, where the defendant has appeared,  but has not filed a defence, the claimant may set down a motion for judgment and obtain judgment in accordance with his statement of claim.  The statement of claim must be consistent with the initiating writ/summons.  The claim must not be against an infants or a person of unsound mind.  In the alternative, a claimant may set the action down for trial, notwithstanding default of defence.  This will be necessary if oral evidence is required to establish the claim.

If the claim is for both unliquidated and liquidated amounts, a final order may be made in respect of the liquidated amount and an interlocutory order may be made in respect of the unliquidated sum, to be assessed on motion or at an undefended hearing.

Where a defence applies to part of a claim only, the claimant may with leave of the court, enter final and interlocutory judgment as the case, may be in respect of the undefended part of the claim.

Where leave is not required, the claimant may apply to the court offices with the appropriate affidavits and seek judgment in the court offices.

Where issues have been order to be tried or determined in any matter, the claimant may issue  a motion for judgment after the issues have been determined.

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 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 and of the Supreme Court are entered in proper books to be kept for that purpose and the judgement or order shall be filed in the Central Office. A copy of every judgement or order of the Supreme Court shall also be filed in the Office of the Registrar of the Supreme Court.

Every judgement or order pronounced or made by the High Court 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, or 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.

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 counsel’s duty to take a 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 reargued.

Judgement Structure

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 for the process of ascertaining or giving effect to rights. There may be also consequential directions, including for example, for sale of assets dealing with funds and payment of costs.

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

The Judgement

There is distinction between the judgement in the sense of the order and the reasoned judgement based on the findings of fact and the law which the judge may or may not write. The judgment is drawn up without setting out the reasoning or the evidence. The judgement in this sense is a concise finding and decision, usually embodying declarations and orders.

Modern Human Rights requirements emphasise the requirement for a reasoned decision on the evidence. Judgments should set out a statement of evidence on which they are based together with a statements of objections that were taken at hearing and the decision of the court upon the objections, with the evidence objected to being read or not read as accordingly. Objections to admissibility should be dealt with at that time and evidence should not be entered as having been read, provisionally.

If the case is appealed, the appellant  settles a schedule of the evidence used at the trial.  If there is a dispute as to what evidence shall be entered as read, the matter may be adjourned to the judge for decision. The judge may give directions as to the costs of adjournment and subject to such directions, the costs of setting the schedule. The costs are costs in the appeal.

The schedule is not limited to evidence in respect of a point under appeal. It ought to be a complete schedule of all evidence used at the trial.  It must be signed by the registrar.

Every document which is intended for use in evidence ought to be formally marked by the registrar.  Only those documents which have been  referred to at the trial, should be entered as read.  Where an order has been made for the defendant without evidence being heard, evidence which he could have put, should be entered as read.

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 for amendment for  pleadings and for extension 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, master of registrar as the case may be.

In common law practice, 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 within seven days 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.  On non-compliance, a person may apply to the master / registrar for delivery of the papers and for the costs of the application. In chancery / equity practice, the position is as set out above.

Taking Effect

A judgment is entered as of the date when it is pronounced, unless it is otherwise ordered.

A judgment generally takes effect from its date.  Interest runs from the date of entry.  In other cases, however service is necessary to make the judgment effective.

Where an interlocutory judgment for damages to be assessed is made and entered, the amount of damages after being ascertained is added to the judgment entered. The whole judgment is dated the date on which the interlocutory order is entered.

Where an order directs something to be done within a time limit and the order is not drawn up in due course, the order may be drawn up as of the date it was made, but extending the time limit until after service of the order.

A judgment for the recovery of monies need not be served before seeking execution unless the order directs payment within a certain time after service.

A judgment or order requiring a person to do an act must be served.  It is usually endorsed with a warning or a penal notice that a person to whom it is directed, is required to obey it within the time for doing the act.