Getting things in court orderDistrict Judge Stephen Gerlis explains why there is more to a court order than often meets the solicitor's eyeThe most important aspect of any litigation is not the pleadings or the witness statements or the trial - it is the order made by the court.

That is the active step taken by the court either to finalise the dispute or regularise some interim situation, be it directions or sanctions.

Any enforcement will be based on the order and therefore it is important that the order is right.High drawUnder Civil Procedure Rules 1998 (CPR) r.40.3 every judgment or order, including those made at trial, will be drawn up by the court unless:l The court orders a party to draw it up;l A party with the permission of the court agrees to draw it up;l The court dispenses with the need to draw it up; or,l It is a consent order under CPR r.40.6.

Thus the High Court has now adopted the County Court practice of drawing up orders itself.

Note that a judge has jurisdiction to re-consider his decision before an order is drawn up (Charlesworth (Willis Arnold) (Claimant) v Relay Roads Ltd (In Liquidation) & ors (No 2) [1999] 4 All ER 397).Checking with the judgeAsking the court to draw up the order does not always guarantee its accuracy.

There are a number of reasons for this.

First, if the judge's order is hand-written - and it usually is, even in these days of modern technology - it will be a question of the 'back office' interpreting what it says.

I know of at least one district judge, now retired, whose handwriting was, by any account, almost completely illegible.

There was one person in the office part of whose function was to decipher exactly what the judge had written, so it was common to see his orders written out meticulously but illegibly in red biro with a pencil 'translation' above them.

If in doubt the court staff should not be afraid to ask the judge exactly what he has written.

Many judges' handwriting seems to suffer from the same affliction which affects doctors.

It is also a good idea for practitioners to make a careful note of the judge's order when it is given in court.Second, it is easy for a judge to get confused when the benefit of the order is to go to someone other than the claimant be it the defendant or, even worse, where the person getting the order is a pt 20 defendant (it could be the claimant or someone else) or some other confusing combination.

Getting the party wrong is not uncommon.Third, even in an age where many orders are computer generated, this provides no assurance that the order is actually accurate.

Until recently some computer-generated possession orders used to say something along the lines of 'Unless you pay the sum of 0.00 arrears an order for possession will be made'.

What could a poor old defendant make of that? Only now are the computer systems being adapted to allow for orders which may not be standard to be included in those generated by machine.So the message is - if the court is going to produce the order, check that it is accurate.

What if the parties are going to draw up an order? Well, CPR r.40.3(2) provides that the court may direct that such an order be checked by the court before it is sealed.

However, this task may by CPR r.40.6, be delegated to a court officer in the case of a consent order if none of the parties is a litigant in person and court approval is not otherwise required by the court.

The procedure applies to default judgments for money or delivery up of goods, or for dismissal or stay of proceedings or judgment, setting aside a default judgment, payment out of court, discharge of liability or provisions for costs.

As such orders are not otherwise checked by a judge it is again important to check their accuracy before sending them off to be rubber-stamped.The fact that the court may be making the order does not always relieve a party from suggesting what the order should be.

CPR r.23.6 says that any application should include the nature of the order that the applicant is seeking and the advice is that, except in the simplest of cases, an applicant should provide the court with a draft order.

Even in ancillary matters in family proceedings the trial bundle should contain a draft of the orders each party is seeking.

And while on the subject of ancillary relief, draft consent orders are common, and are just as commonly wrong - asking the court to do things it has no power to do, putting items in the recital that should be in the order and vice versa and not allowing for the fact that the decree nisi or absolute may not yet have been granted.

These are just some of the pitfalls that practitioners rush headlong into.New time limit, pleaseAsking the court to enforce existing orders by the application of sanctions can be a recipe for disaster where the original order contained a time period within which an order had to be complied with, and it is just as easy for the court as well as practitioners to fall foul of this.

Court orders now specify a date and usually a time by which an order must be complied with, for example 'by 4pm on the 15 February 2001'.

If the order is not complied with by that date the applicant may ask the court to impose a sanction such as an 'unless' order or, as in family proceedings, the attachment of a penal notice.

Many a time I have seen draft or final orders which say something like 'Unless the defendant complies with para 3 of the order of the 21 December 2000 his defence shall be struck out'; or 'A penal notice shall be attached to para 4 of the order of the 12 November 2000', when both matters relate to a time order where the time for compliance has run out.

Such orders are of no use as they do not specify a further date for compliance which is essential for the sanction to biteHas anyone seen N436?There is one order which frequently causes problems and, again, it is not always the practitioner's fault - an order for sale of property pursuant to a charging order under CPR sched 2 CCR Ord 31 r.4.

For years the 'Green Book' (The County Court Practice) has suggested that for the form of order for sale the reader should 'see Form N436' but I defy anyone to find that form in the Green Book.

It is simply not there - the forms end at N434.Ironically, even if you did find it, the court would probably reject it because for some considerable time now the judges have been provided with a precedent from the Chancery Division as the preferred form of order.

Don't say you haven't been warned!Tomlin alive and well'Tomlin Orders' have disappeared from reference in the Green Book (though not from the White Book - see D1-361).

It is a pity because they are a convenient way of disposing of matters, providing as they do for a stay of proceedings on conditions contained in a schedule.

Hence, the only order the court makes is the stay itself and possibly as to a costs assessment.

However, it is important to ensure the contents of the schedule are accurate and agreed as, although they are not part of the order, steps may be taken to enforce them should the conditions not be complied with because liberty to apply as to the carrying of the terms into effect is usually reserved.Don't get too depressed about it all.

At the end of the day you always have CPR r.40.12 to fall back on.

'The court may at any time correct an accidental slip or omission in a judgment or order'.

Let's hope you don't have to ask them to do so too oftenDistrict Judge Stephen Gerlis sits at Barnet County Court