What is a draft order?

What a draft order is

A draft order converts the result a party wants into precise directions that could be adopted by the court. Instead of asking only for “an extension”, “an injunction” or “costs”, the draft states the proposed operative terms: who must do what, by when, what happens to existing directions, what is to be filed or served, and how costs or further case management should be dealt with. It therefore helps the judge and the other parties see the exact order being sought.

The word “draft” matters. Filing a draft does not mean that the court has granted it. The judge may refuse the proposed relief, change individual paragraphs, make a different order, or direct the parties to agree revised wording. CPR 40.2 requires a judgment or order to bear the date on which it is given or made and to be sealed by the court, subject to the specific exceptions in the rule. CPR 40.7 provides that an order takes effect from the day it is made, unless the court specifies a later date.

When a draft order is used with an application

Draft orders are commonly used with applications because they identify the exact procedural result the applicant seeks. Under CPR 23.7, when an application notice is served, the served material must include a copy of any draft order that the applicant attached to the application. Practice Direction 23A also requires a case summary and draft order to be filed and served in multi-track cases, and in small, fast and intermediate track cases where the court directs.

Some types of application have more specific requirements. For interim remedies, CPR 25.6 states that, whenever possible, the applicant must file a draft of the order sought with the application notice and provide an electronic version in a format that allows the court to amend it. A party should therefore check the rule, practice direction, court guide and any order governing the particular application instead of assuming that one generic draft-order procedure applies to every case.

What the draft should contain

The draft should reflect the relief actually sought in the application and should be capable of being understood without reconstructing its meaning from correspondence. The exact form depends on the court and the kind of application, but the draft will ordinarily identify the court and claim, the parties, the proposed operative directions, any dates or time limits, and any provision sought about costs, service, further hearings or consequential steps.

Each operative paragraph should be specific. If a document must be served, identify the document, the person responsible and the deadline. If time is to be extended, identify the existing deadline and the proposed new deadline. If a previous direction is to be varied, identify the relevant part of the earlier order rather than drafting a free-standing paragraph that leaves two inconsistent directions in place. If the application seeks alternative relief, the alternatives should be expressed so the court can see what order would follow from each outcome.

Keep evidence, argument and the proposed order separate

A draft order is not a substitute for evidence or legal submissions. The witness statement or other evidence should establish the facts relied on; the application and submissions should explain the legal and procedural basis for the relief; the draft order should state the practical result the court is invited to make. Mixing long factual allegations into the operative paragraphs can make the proposed order unclear and difficult to enforce.

Recitals may sometimes record matters that need to be noted before the operative provisions, but they should not be used to smuggle disputed findings into an order that the judge has not made. After a hearing, the wording must follow what the court actually decided. If the judge refused part of the application or imposed a different condition, the post-hearing draft should reflect the ruling rather than repeat the applicant’s pre-hearing proposal.

Who draws up the final order after the court decides

CPR 40.3 provides that, subject to specified exceptions and any applicable practice direction, the court will draw up the judgment or order unless the court orders a party to draw it up, permits a party to do so, dispenses with drawing it up, or the case concerns a consent order under rule 40.6. If a party is ordered or permitted to draw up the order, that party must file it within 7 days so it can be sealed; if the party does not do so, another party may draw it up and file it.

Practice Direction 40B adds practical controls. Where the court directs that an order drawn up by a party must be checked before sealing, the responsible party must file the draft for checking within 7 days of the order. Where the court directs the parties to file an agreed statement of the terms of an order that the court is to draw up, the parties must normally do so within 7 days unless the court directs otherwise.

Draft order, sealed order and consent order are different

A draft order is proposed wording. A sealed order is the formal court document produced after the court has made the order and the drawing-up process has been completed. A consent order is different again: it records terms agreed by the affected parties and is subject to CPR 40.6 and any other rule requiring judicial approval. Agreement between parties does not turn an unsigned draft into a court order.

For an agreed order within CPR 40.6, the document must accurately record the terms agreed. Where the rule permits a court officer to enter and seal the agreed order, the specified conditions must be satisfied. In other cases a party may apply for an order in the agreed terms. The distinction matters when checking whether a document is merely a proposal, an agreement awaiting approval, or an order that has actually been made.

Check the draft against the hearing result

After a hearing, compare the draft line by line with the judge’s decision and any directions given about wording. Check every date, amount, party name and obligation. If the court ordered a timetable, ensure the sequence of deadlines is workable and does not conflict with another existing order. If costs were reserved, summarily assessed, ordered in a particular amount or made subject to another direction, use the wording that corresponds to the decision rather than a standard costs paragraph.

Also check whether the court gave or refused permission to appeal, stayed any part of the order, made the order subject to a condition, or required service on a non-party. CPR 40.2 contains requirements for judgments and orders, and other rules or specialist court guides can add further requirements. The final drafting exercise is therefore a transcription-and-control task, not an opportunity to improve the result obtained at the hearing.

Common drafting mistakes

• Relief wider than the application: the draft asks for something that was not sought or supported by the application.
• Unclear deadlines: phrases such as “promptly” are used where the court needs a fixed time or date.
• Conflicting directions: a new deadline is inserted without varying the paragraph of the existing order that contains the old deadline.
• Missing responsibility: the draft does not say which party must file, serve, pay or provide the document.
• Pre-hearing wording reused after the hearing: the draft still contains relief that the judge refused or modified.
• Confusing proposal with order: correspondence describes an unsealed draft as though it were already binding.
• Ignoring a specialist rule or guide: the draft follows a generic precedent even though the relevant court or application has additional requirements.

A practical draft-order checklist

Before filing or circulating a draft, verify the claim number, court, party names and the application to which the draft relates. Match each substantive paragraph to the relief sought or to a direction actually made. Recalculate dates rather than copying them from an old precedent. Check cross-references to earlier orders. Remove provisions that do not apply to the case. If the court has directed an electronic editable version, use the required format.

For a post-hearing draft, retain a note of the ruling and compare the proposed wording against it before asking another party to agree the text. If disagreement is about the substance of what the judge decided rather than a typographical point, do not solve that disagreement by silently changing the draft. Follow the court’s directions for resolving disputed wording or seek the appropriate procedural direction.

Official rules to check

• CPR Part 23 – applications for court orders, including service of a draft attached to an application.
• Practice Direction 23A – Applications, including hearing-document requirements.
• CPR Part 40 – judgments and orders, including drawing up, sealing, consent orders and when an order takes effect.
• Practice Direction 40B – Judgments and Orders, including filing drafts for checking after an order has been made.
• CPR Part 25 – interim remedies where the application concerns interim relief.