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PRACTICE DIRECTION – 16.5

PEREMPTORY ORDERS

　

1.　For clarity, the nature and forms of peremptory orders in terms of R.S.C., O.42 r.2 are define

2.    The common form of peremptory order known as an "unless" order should prescribe the period within which an act is to be done, failing which the ordered consequences will follow. These orders fall into two categories:

(a)   where the party ordered is not present/represented in which case the wording should be—

"unless within 14 days of the service of this order the defendant [serves his list of documents the defence be struck out and judgment entered for the plaintiff with costs.]"

or

(b)   where the party ordered is present/represented, or if a consent order is made, in which case the wording should be—

 "unless by [4 p.m. on Thursday, 1st December 1988] etc. as above".

          It is desirable that the time be spelt out to avoid future argument.

3. The other form of peremptory order in common use does not carry within its wording the sanction for disobedience, hence: -

"It is ordered that [defendant] do within [14] days of service of this order 'or' do by
[4 p.m.on Thursday,1st December 1988] serve his list of documents on the plaintiff."

An order of this nature is only preliminary to an "unless" order and on disobedience a supplementary order in "unless" form, setting out the sanction, should be obtained. Until then the earlier order cannot be enforced.

4. The exceptions to these provisions are set out in O.42 r.2(2). In such cases the judgment or order may be enforced immediately unless the court specifies a time for compliance or unless additional requirements are imposed by another rule such as O.45 r.3.