The Court of Appeal emphasised that an order that prescribes unpleasant consequences unless a particular act is done is an order that ‘requires a person to do an act’ within the meaning of RSC Ord. 42,r.2.
(2) Rule 2(1) requires that (subject to important exceptions mentioned in paragraph 7 below) such an order must make clear to the party against whom it is made the precise period within which the act is to be done. A common form of such order provides that ‘unless’ the act is done the unpleasant consequences are to follow, and is usually called an ‘unless order’.
(3) To comply with rule 2(1) such an order must either (a) specify the time after service of the order within which the act is to be done or (b) specify some other time for this purpose.
(4) Accordingly, an ‘unless’ order should be worded either (a):
‘unless within [14] days of service of this order [the defendant serves his list of documents the defence be struck out and judgment entered for the plaintiff with costs (of as may be)]’.
This wording must be used if the affected party is not present or represented.
Or (b): ‘Unless by [4 p.m. on Friday, 13 June 1986] (continue as above).’ This is the clearest form but is suitable only where the affected party is present or represented and so has notice of the order. It is also suitable for consent orders. An alternative wording, which has been approved, and can be used where the party is present or represented is: ‘unless within [14] days from today (etc).’ But this sometimes leads to argument how the time is to be reckoned, and is not suitable for consent orders.
The same principles apply to the other form of peremptory order in common use and having the same effect. By it the party is, first, ordered to do the act and there is then added a clause that, in default of compliance, specified consequences will follow. That part that directs the act to be done must use wording (a) or (b) above, thus:
[it is ordered that] the [defendant] do within [14] days of service of this order [do the required act or do by [4 p.m. on Friday, 13 June 1986] do that act].’
6. If an order of these types is made that does not fulfil either of these requirements a supplementary order should be obtained, fixing the time; until this is done the order cannot be enforced.
7. The exceptions to the foregoing provisions are set out in rule 2(2) and are judgments or orders: (a) to pay money to any person; (b) to give possession of land; (c) to deliver any goods. In these cases the judgment or order may be enforced immediately unless the court (as it may) specifies a time for compliance or unless additional requirements for enforcement are imposed by some other rule (e.g. Ord. 45,r.3 relating to possession of land).
Citations:
[1986] 1 WLR 948
Jurisdiction:
England and Wales
Cited by:
Cited – Frederic J Whyte and Partners (a Firm) v IAF Properties Limited CA 5-Nov-1996
The plaintiff had failed to comply with an ‘unless’ order.
Held: It was a clear requirement that the party should be known to have been aware of the content of an unless order. The order as drafted was fatally irregular and should be set . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 19 July 2022; Ref: scu.194981