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Civil Lit > 20 Judgment > Flashcards

20 Judgment Flashcards

1
Q

Orders to ObtainInformation from Judgment Debtors

A judgment debtor MUST provide

A

info to court so judgment creditor can make informed decisions on how best to enforce a judgment =“oral examination”.

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2
Q

Orders to ObtainInformation from Judgment Debtors

Information Against Judgment Debtor applications = 3 stages:

A
  • C applies using application notice, without notice
  • Order against D to attend court to produce documents + answer questions on oath
  • Debtor must sign written record of evidence; but if before judge -) will be tape-recorded oral hearing
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3
Q

Orders to ObtainInformation from Judgment Debtors

An application by judgment creditor requiring D to attend court + provide info must be made by:

A

filing an application notice in Practice Form N316 if the application is to question an individual judgment debtor, or N316A if the application is to question an officer of a company or other corporation.

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4
Q

Orders to Obtain Information from Judgment Debtors

Application for Order

A judgment creditor may apply for an order requiring:

A
  1. a judgment debtor; or
  2. if a judgment debtor is a company or other corporation, an officer of that body,

to attend court to provide information about –

  1. the judgment debtor’s means; or
  2. any other matter about which information is needed to enforce a judgment or order.
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5
Q

Orders to Obtain Information from Judgment Debtors

Application for Order

Can it be made without notice?

A

YES

  • May be made without notice
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6
Q

An application for order to obtain information from JB - who deals with it?

A

may be dealt with by a court officer without a hearing.

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7
Q

An application for order to obtain information from JB

APPLICATION NOTICE MUST:

A

(1) state the name and address of the judgment debtor;
(2) identify the judgment / order judgment creditor is seeking to enforce;
(3) if payment of money = MUST state the amount presently owed by the judgment debtor
(4) if the judgment debtor is a company or other corporation, state –
(a) the name and address of the officer of that body whom the judgment creditor wishes to be ordered to attend court; and
(b) his position in the company;
(5) if the judgment creditor wishes the questioning to be conducted before a judge, state this and give his reasons;
(6) if the judgment creditor wishes the judgment debtor to be ordered to produce specific documents at court, identify those documents; and
(7) If not for money -) identify matters the judgment creditor wishes the judgment debtor to be questioned

Court officer MAY refer it to judge and MUST if judgment creditor requests debtor be questioned before a judge.

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8
Q

Application notice for orders to obtain info from JD -

What must the court officer do?

A

Court officer MAY refer it to judge and MUST if judgment creditor requests debtor be questioned before a judge.

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9
Q

Orders to ObtainInformation from Judgment Debtors

Order to Attend Court

If the application notice doesn’t comply with requirements, i.e. be in the form and contain info, then:

A

no order to attend court will be issued. If it is in the correct format, an order to attend court will be issued.​

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10
Q

Orders to ObtainInformation from Judgment Debtors

Order to Attend Court

A person served with an order issued must –

A
  1. attend court at the time and place specified in the order;
  2. when he does, produce at court documents in his control which are described in the order; and
  3. answer on oath such questions as the court may require.
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11
Q

Orders to ObtainInformation from Judgment Debtors

Order to Attend Court

The questioning will only take place before a judge if he considers that there are:

A

​ compelling reasons to make such order.

The order will provide the judgment debtor to attend the County Court hearing centre unless a judge decides otherwise.

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12
Q

Orders to ObtainInformation from Judgment Debtors

What will the order contain?

A

A penal notice – that he may be held to be in contempt of court, imprisoned, fined or assets seized if he doesn’t comply with order.

The judgment creditor can obtain information from the judgment debtor for the purpose of being able to better decide which method or methods of enforcement to use.

This procedure is not available pre-action.

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13
Q

Orders to ObtainInformation from Judgment Debtors

Service of the Order to attend court

Service may be from:

A
  1. the judgment creditor (or someone acting on the judgment creditor’s behalf)
  2. a High Court enforcement officer; or
  3. a County Court bailiff.
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14
Q

Hearing to Obtain Information from Judgment Debtor (order to attend court)

Will the person be questioned on oath?

A

yes

The person ordered to attend court will be questioned on oath.

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15
Q

Hearing to Obtain Information from Judgment Debtor (order to attend court)

Who will do the questioning?

A

Questioning will be carried out by a court officer unless the court has ordered that the hearing shall be before a judge.

The judgment creditor or his representative –

(a) may attend and ask questions where the questioning takes place before a court officer; and
(b) must attend and conduct the questioning if the hearing is before a judge.

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16
Q

Orders to Obtain Information from Judgment Debtors

Normal Procedure of the Hearing on order to attend court

What questions does the court officer ask?

A

The court officer asks a standard series of questions, in forms Appendixes A and B.

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17
Q

Orders to ObtainInformation from Judgment Debtors

Hearing to Obtain Information from Judgment Debtor (order to attend court)

At the hearing the judgment creditor or his representative may either –

A

(1) attend court and ask questions himself; or
(2) request the court officer to ask additional questions, by attaching a list of proposed additional questions to his application notice.

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18
Q

Orders to Obtain Information from Judgment Debtors

Hearings Before a Judge

Where hearing before judge, the questioning will be:

A

conducted by the judgment creditor or his representative, and the standard questions in the forms in Appendixes A and B will not be used.

The proceedings will be tape recorded and the court will not make a written record of the evidence.

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19
Q

Orders to Obtain Information from Judgment Debtors

Failure to Comply

If person fails to attend court/to answer question etc =

A

= the court will refer the matter to a High Court judge or Circuit Judge.

That judge may make a committal order.

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20
Q

Orders to Obtain Information from Judgment Debtors

Failure to Comply

If a committal order is made, the judge will direct that –

A
  1. the order shall be suspended provided that the person –
    1. attends court at a time and place specified in the order; and
    2. complies with all the terms of that order and the original order; and
  2. if the person fails = he shall be brought before a judge to consider whether the committal order should be discharged.
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21
Q

Third Party Debt Orders

Can you apply for this without notice?

A

The order MAY be obtained without notice on an interim basis. A hearing follows when the court decides whether or not to make a final third party debt order.

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22
Q

tHIRD PARTY ORDERS

Who hears the hearings?

A

Master or District Judge.

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23
Q

When are TP debt orders use?

A

where JD is owed money by a third party. Eg., It is an order requiring the bank etc to pay money from the account to the creditor to pay the judgment.

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24
Q

Third party debt orders:

2 stage process

A
  • Without notice application for interim order freezing the money until
  • On notice hear ing, where the court considers whether to make a final order

The court will not make a third party debt order without first making an order (an ‘interim third party debt order’).

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25
Q

Third party orders

Applying for Interim Order

What must happen?

A

must be issued in the court which made the judgment or order which it is sought to enforce, except that-

(i) if the proceedings have since been transferred to a different court, it must be issued in that court;

APP NOTICE MUST BE VERIFIED BY STATEMENT OF TRUTH

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26
Q

App for third party debt order must be made by filing an application notice.

The app must have:

A
  1. name and address of the judgment debtor;
  2. details of the judgment or order sought to be enforced;
  3. amount of money remaining due under the judgment or order;
  4. if the judgment debt payable by instalments, the amount of any instalments which have fallen due and remain unpaid;
  5. the name and address of the third party;
  6. if the third party is a bank or building society –
    1. its name and the address of the branch at which the judgment debtor’s account is believed to be held; and
    2. the account number;
  7. details of any other applications for third party debt orders
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27
Q

App third party order application notice:

If judgment creditor does not know all or part of this information.. he must:

A
  1. confirmation that to the best of the judgment creditor’s knowledge or belief the third party–
    1. is within the jurisdiction; and
    2. owes money to or holds money to the credit of the judgment debtor;
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28
Q

App third party order application notice:

if the judgment creditor knows or believes that any person other than the judgment debtor has any claim to the money owed by the third party,

he must:

A

state:

  1. his name and (if known) his address; and
  2. such information as is known to the judgment creditor about his claim;
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29
Q

Third party order

Will the court make speculative apps?

+

Will they make an interim TP order against bank/building society?

A

Court wont grant speculative apps for third party debt orders

+

will only make interim third party debt order against bank/building society IF judgment creditor’s app notice contains EVIDENCE to substantiate belief that judgment debtor has account with bank or building society.

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30
Q

Third party order

Who can the order not be made against?

A

A Third Party Debt order is not available against a joint bank account:

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31
Q

Charging Orders

What can it be made against?

A

Court order imposing a charge on JD’s land. Can also be made against DJ’s interest in:

  • “securities”, such as company shares etc
  • funds in court
  • partnership property

Charging Orders gives security if JD subsequently becomes insolvent.

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32
Q

If a charging order is made, what must the judgment creditor do?

A

The Judgment Creditor has to register the charge.

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33
Q

A charging order can be made against:

A

whatever interest JD has in the asset.

They can, for example, be made against JD’s share in the matrimonial home (where JD owns only part of the equity of redemption). The application for a charging order has to be served, for example, on JD’s spouse, who is allowed to raise objections to the application.

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34
Q

Charging order an matrimonial home.

What is the position?

A

If property = in sole name of judgment debtor—or owned jointly by spouses who are both judgment debtors—the charge will be against the land itself.

Charging order can be made in respect of land which the debtor owns jointly with another. However, the order ranks as a charge on the debtor’s beneficial interest rather than upon the land itself.

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35
Q

Application for Charging Order

Two stage process:

A
  • Without notice application for interim order
  • On notice hearing to consider making final order (or “absolute”)
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36
Q

Application for Charging Order

Where should the apps be started and dealt with?

What happens if objections are raised?

A

County Court applications are all started at the County Court Money Claims Centre, and will normally be dealt with by a court officer. However, if objections are raised the application is transferred to JD’s home court for hearing by a District Judge.

High Court applications are always dealt with by a judge

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37
Q

An app for charging order

made with or without notice?

A

Without notice

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38
Q

Where must an app for charging order be made?

A

to CC Money Claims Centre, unless app is for charging order over an interest in a fund in court, where it must be made to CC hearing centre where order/judgment made.

The app must have a statement of truth.

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39
Q

An app for charging order must be made by filing an application notice.

App notice must have:

A

) the name and address of the judgment debtor;

(2) details of the judgment or order sought to be enforced;
(3) the amount of money remaining due under the judgment or order;
(4) if the judgment debt is payable by instalments—
(a) whether the order was made on or after 1 October 2012; and
(b) the amount of any instalments which have fallen due and remain unpaid;
(5) if the judgment creditor knows of the existence of any other creditors of the judgment debtor, their names and (if known) their addresses;
(6) identification of the asset or assets which it is intended to charge including, where applicable, the title number under which any land upon which it is sought to impose a charge is registered;
(7) details of the judgment debtor’s interest in the asset; and
(8) the names and addresses of the persons on whom an interim charging order must be served

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40
Q

Charging order

Do multiple app notices have to be made?

A

Judgment creditor may apply in a single application notice for charging orders over more than one asset, but if the court makes interim charging orders over more than one asset, it will draw up a separate order relating to each asset.

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41
Q

Enforcement of Charging Order by sale

A
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42
Q

Four kinds of charging order:

A
  1. On land (the most common);
  2. On securities;
  3. Over judgment debtor’s interest in a fund in court; and
  4. Over the judgment debtor’s interest in partnership property.
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43
Q

Does charging order affect the accrual of judgment interest?

A

The charging order does not affect the accrual of judgment interest on High Court or County Court judgments.Subsequently, the judgment creditor can apply for an order for sale.

44
Q

For service of the application and interim charging order what must happen?

A

MUST serve on judgment debtor’s spouse or civil partner and expressly provides for service by the judgment creditor.

If an objection is filed, the application will be sent to the judgment debtor’s home court for the fixing of a hearing before the District Judge or Legal Adviser. Notice of any such hearing will be served by the court

45
Q

Stop Order / Stop Notice

stop order” means

A

order of the court prohibiting the taking, in respect of any of the securities specified in the order, of any of the steps following:

  1. (a) the registration of any transfer of the securities;
  2. (b) in the case of funds in court, the transfer, sale, delivery out, payment or other dealing with the funds, or of the income thereon;
  3. (c) the making of any payment by way of dividend, interest or otherwise in respect of the securities; and
  4. (d) in the case of units of a unit trust, any acquisition of or other dealing with the units by any person or body exercising functions under the trust.
46
Q

Stop Order / Stop Notice

“stop notice” means:

A

notice requiring any person or body on whom it is duly served to refrain from taking, in respect of any of the securities specified in the notice, any of those steps without first notifying the person by whom, or on whose behalf, the notice was served

Often combined with charging orders.

47
Q

Writs and Warrants of Control

Execution against goods

What are the types?

A
  • Warrant of control (County Court)
  • Writ of control (High Court)
48
Q

Writs and Warrants of Control

To issue a warrant (or writ) you must:

A

MUST file a request, and then serving the writ on the Enforcement Officer or Enforcement Agent.

49
Q

What happens when you issue and file a request for a write/warrant?

A

Enforcement agents (CC) or Enforcement Officers first write to the JD warning that they will be coming.

(b) JD contacts enforcement agents and pays / pays by instalments
(c) If not, enforcement agents secure JD’s goods in one of 4 ways:

  • securing goods on JD’s premises
  • securing goods on the highway
  • removing goods and storing them elsewhere
  • making of a controlled goods agreement (see below)

(d) Enforcement agents are allowed to use force to enter JD’s home or business premises. BUT restrictions on when, eg, hours of the day
(e) They may remove goods up to the value of the judgment. JD then pays up, or goods are removed.
(f) If JD does not pay, the goods are sold at public auction.
(g) Proceeds of sale are used to pay off the judgment.

50
Q

How is a writ and warrant enforced?

A

Mostly, enforcement by writ / warrant of control is done by lodging forms and paying fees, but without the need for court orders. However, there is a list of court applications that might be necessary in some cases.

51
Q

Writs and Warrants of Control

What happens to items that do not belong to the debtor?

A

Items that do not belong to the debtor are protected from seizure by the enforcement agent.

52
Q

A controlled goods agreement

means

A

agreement under which the enforcement agent and the debtor agree terms for the repayment by the debtor of the sum outstanding under the judgment or order. MUST be in writing and signed by enforcement agent and debtor (person authorised or person with authority). Debtor must be provided with a copy of the agreement, regardless of whether or not it is the debtor or someone with authority or apparent authority who actually enters into the agreement.

53
Q

Permission to Issue Writs / Warrants of Control?

A

Normally permission is not required.

(1) This rule applies to—
(a) writs and warrants of control;
(b) writs of execution;
(c) warrants of delivery;
(d) warrants of possession.

54
Q

Permission to Issue Writs / Warrants of Control

Exceptions

A

A relevant writ or warrant must not be issued without the permission of the court where—

(a) six years or more have elapsed since the date of the judgment or order;
(b) any change has taken place, whether by death or otherwise, in the parties—
(i) entitled to enforce the judgment or order; or
(ii) liable to have it enforced against them;
(c) the judgment or order is against the assets of a deceased person coming into the hands of that person’s executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets;
(d) any goods to be seized under a relevant writ or warrant are in the hands of a receiver appointed by a court or sequestrator;
(e) under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled; or
(f) the permission sought is for a writ of control or writ of execution, and that writ is to be in aid of another writ of control or execution.

55
Q

Application for Permission to issue writ / warrant of control

An app for permission MUST:

A

(a) identify the judgment or order to which the application relates;
(b) if money, state amount originally due and, if different, the amount due at the date the application notice is filed;

56
Q

Application for Permission to issue writ / warrant of control

An app for permission MUST:

If this is a case where 6 years or more have elapsed since date of judgement – MUST state

A

the reasons for the delay in enforcing the judgment or order;

57
Q

Application for Permission to issue writ / warrant of control

An app for permission MUST:

If any change occurred, whether by death or otherwise, it must state

A

state the change which has taken place

58
Q

Application for Permission to issue writ / warrant of control

An app for permission MUST:

Where receiver or sequestrator or deceased = state

A

that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that that person has refused or failed to do so;

59
Q

Writs and Warrants of Control

made with or without notice?

A

App may be made without notice unless the court directs otherwise.

60
Q

Writs and Warrants of Control

If applicant seeks permission under any change that has occurred, to enforce more than one judgment or order, the applicant need only make one application for permission. If so,:

A

(a) a schedule must be attached to the app for permission, specifying all the judgments/orders; and
(b) if the application notice is directed to be served on any person, it need set out only such part of the application as affects that person.

61
Q

Writs and Warrants of Control

Where must the app be made if no pre-existing proceedings and pre-existing?

A

Where no pre-existing proceedings, an app must be made to the County Court.

Where pre-existing proceedings, app must be made to HC or CC.

62
Q

Duration of Order for Permission to issue writ / warrant of control

A

Where the court grants permission for issue of write of execution/of control and writ is not issued within one year after the date of the permission order, the permission order will cease to have effect.

Where a permission order has ceased to have effect, court may grant a fresh permission order.

63
Q

Writs and Warrants of Control

Exempt Goods

A

Enforcement agents cannot take “exempt goods”, (such as tools and equipment up to £1,350 used by the JD in his employment or trade)

Also clothes, bedding etc

Not covered at all by the writ or warrant of control (and therefore cannot be removed by the enforcement agents) are goods belonging to someone else.

Eg a car on hire purchase does not belong to JD, but to the finance company

64
Q

Writs and Warrants of Control

What are competitng claims?

A

Enforcement agents sometimes need to make “stakeholder claims”

e.g. when goods the enforcement agents wish to seize are claimed to belong to someone other than JD.

65
Q

Writs and Warrants of Control

What are controlled goods agreement?

A

Enforcement agent often enters into a “controlled goods agreement” under which JD may agree terms for repayment, but more importantly:

  • JD retains the goods
  • JD (or someone with apparent authority if the premises are used for trade or business) acknowledges the enforcement agent is taking control of the goods
  • JD agrees not to remove or dispose of the goods, or permit anyone to do so until the debt is paid
  • The agreement must be in writing and contain prescribed information
  • JD must be provided with a copy
66
Q

Writs and warrants

Enforcement of judgments generally

A judgment or order of a county court for the payment of a sum of money which it is sought to enforce wholly or partially by execution against goods:

A
  1. shall be enforced only in the High Court where the sum which it is sought to enforce is £5,000 or more
  2. shall be enforced only in the county court where the sum which it is sought to enforce is less than £600;
  3. in any other case may be enforced in either the High Court or in a county court.
67
Q

Attachment of Earnings

What would the court order do?

A

Court order requiring JD’s employer to deduct instalments from salary

68
Q

Attachment of Earnings

which court can order it?

A
  • Mainly available in CC (not High Court)
69
Q

Attachment of Earnings

What are the requirements?

A
  • Mainly available in CC (not High Court)
  • Amount outstanding on the judgment must be not less than £50
  • JD must be employed (not Self-Employed). This means someone paid “earnings” by an employer (AoEA 1971, s. 6(2))
  • Occupational pension can be attached. State pensions cannot
70
Q

Place to Apply for Attachment of Earning Order

A

An app to the County Court for an attachment of earnings order must be made to the County Court Money Claims Centre.

71
Q

Procedure for Applying for Attachment of Earnings

An application for an attachment of earnings order must include:

A

a certificate of the amount of money remaining due under the judgment or order and that the whole or part of any instalment due remains unpaid.

72
Q

Procedure for Applying for Attachment of Earnings

Where attachment of earnings order sought to enforce magistrates’ court order, the applicant must file with application—

A

(a) a certified copy of the order; and
(b) a witness statement verifying the amount due or a certificate by that designated officer to the same effect.

Judgment creditor just needs to complete the request form and pay the court fee.

73
Q

Attachment of Earnings

Form of the order

The order fixes both:

A

Debtor’s protected earnings rate

Debtor’s normal deduction rate

74
Q

Debtor’s protected earnings rate

A
  • the figure that the court thinks is reasonable having regard to the JD’s resources and needs. No deductions can be made to reduce the JD’s earnings below this figure
75
Q

Debtor’s normal deduction rate

A
  • amount court thinks reasonable as the weekly or monthly instalment towards paying the judgment
76
Q

Court can make attachment of earnings order where judgment is not less than

A

£50, or payments under an administration order. HC cannot make attachment of earnings, unless it is an order to secure payments under HC maintenance order.

77
Q

Attachment of earnings

Transfer to High Court for enforcement

Only where the sum which it is sought to enforce is less than

A

£600 must the judgment be enforced in the County Court.

In other cases the judgment can—and if it is sought to enforce £5000 or more must—be enforced in the High Court.

78
Q

If Judgment creditor wants enforce HC judgment or order in CC.

He MUST

A

MUST apply to HC to transfer proceedings.

App MAY be made to obtain info from judgment debtor.

79
Q

When does a judgment/order take effect?

A

immediately

80
Q

How long do you have to appeal an order/judgment?

A

APPEAL = within 21 dys from date decision made against you, NOT service Ɏ may not have reasons.

EXCEPTION: Payment of money. Losing party has 14 days to pay – not just damages, but costs too.

81
Q

Drawing up

GR: Every judgment/order will be drawn up by court, unless –

A
  1. Court orders
  2. Party, with permission agrees to draw it
  3. Court dispenses need to draw it up
  4. Consent order under r40.6

6 exceptions

(1) QBD orders norm drawn by parties
(2) Provided by PD
(3) to (6) The four exceptions listed above

82
Q

QBD orders in the Royal Courts of Justice - These must be drawn up by:

A

the parties, except for:

  • orders of court’s own initiative
  • court orders otherwise
  • Administrative Court orders (= in judicial review cases)
83
Q

Failure by a Party to Draw up

A

Where judgment/order is to be drawn up he MUST file no later than 7 days so it can be sealed + if he fails = any other party may draw it up + file it.

84
Q

CORRECTION OF ERRORS IN JUDGMENTS/ORDERS

Where there is an error, what happens?

And how to do it:

A

party may APPLY for it to be corrected.

App notice must describe error + set out correction. App can be without hearing if:

  1. Applicant requests
  2. Consent of parties;
  3. Court doesn’t consider it appropriate
85
Q

CORRECTION OF ERRORS IN JUDGMENTS/ORDERS

Can judge deal with app without notice?

A

Judge MAY deal with app without notice if slip/omission is obvious or may direct notice of app to be given to other side. If app is opposed it should be listed for hearing before judge who made order

86
Q

Time for Compliance with order/judgment? =

A

Judgment/order takes effect day when it is given or made or if judge specifies. NOT date when it drawn up.

87
Q

Time for compliance with money order/judgment?

A

ORDER TO PAY MONEY = within 14 days UNLESS:

  1. Judgment/order specifies different date for compliance
  2. Rules specifies different date for compliance; or
  3. Court stayed proceedings/judgment

Pay within 14 dys of:

  1. Date judgment/order
  2. Date of certificate stating amount
  3. Such other date court specifies.
88
Q

When would you ask for a stay of execution?

A

Stay of execution = party against whom judgment given/order made may apply to court for:

  1. Stay of execution of judgment/order; or
  2. Other relief

On ground: matters which occurred since date of judgment/order. Court may grant relief as just

89
Q

Methods of Recording Settlements

A
  • Entry of final judgment.
  • Judgment with Stay of Execution pending payment of instalments.
  • Stay of proceedings. This is used in Consent Orders (including Tomlin Orders)
  • “No Order” save as to costs. Untidy
  • Discontinuance of the claim (or counterclaim). unless costs agreed = C must pay D’s costs.
  • Dismissal of the claim (or counterclaim).
90
Q

What are Tomlin Orders?

A

Parties agree for terms -) in confidential schedule. Further proceedings stayed, except carrying out terms. Terms dealt with by court appear = on front. Detailed settlement terms secret in schedule.

Front order

Public + immediately enforceable = normal court orders. Norm:

  • the stay;
  • liberty to apply for further directions;
  • payment of money; and
  • liability for costs/ the basis (standard or indemnity basis) + method of assessment (to be agreed, or failing agreement, by detailed assessment)
91
Q

What is a Tomlin order schedule?

A

Terms of settlement contract, + NOT part of the formal order.

  • Deal with anything
  • secret
  • Not available for credit scoring purposes.

Contractual = can only be varied / set aside (fraud, duress etc).

92
Q

Formalities: Consent Orders

MUST include

A
  • bear date made
  • be sealed
  • be drawn up in the terms agreed
  • be expressed to be “By Consent”
  • be signed by legal representative
  • in Tomlin order, following MUST appear in body order, NOT in the schedule
  • stay of proceedings
  • payment of money out of court
  • payment and assessment of costs
93
Q

Enforcement of Consent Orders

A

Enforcement may be by:

  • Direct enforcement – available for substantive part of the judgment, Consent Order, or Tomlin Order
  • Application to remove a stay followed by enforcement
  • 2-stage (Tomlin Order schedule)
    • Restoration under the “liberty to apply” + obtaining order (eg specific performance) for compliance. Permissible even if relevant term goes outside the ambit of litigation, and
    • secondly enforcement of the new order if that is breached
  • Starting fresh proceedings (Consent Order granting a stay upon agreed terms
94
Q

A court officer may enter + seal agreed judgment/order if –

A

(a) the judgment or order is listed in paragraph (3);
(b) no party is litigant in person; and
(c) approval of court not required

95
Q

A court officer may enter + seal agreed judgment/order if –

(a) the judgment or order is listed.

What are the orders/judgments listed?

A

(a) a judgment/ order for –
(i) money payment
(ii) delivery up of goods
(b) an order for –
(i) dismissal of proceedings, wholly or in part;
(ii) the stay of proceedings on agreed terms
(iii) the stay of enforcement of a judgment - unconditionally or on condition
(iv) setting aside under Part 13 of a default judgment which has not been satisfied;
(v) payment out of money which has been paid into court;
(vi) discharge from liability of any party;
(vii) payment, assessment or waiver of costs

r 40.6(3)(a) above restricts administrative entry to orders to common law relief.

96
Q

How is a consent order entered?

A

Consent Order is entered administratively by a “court officer” without the order “made” by judge.

Where (2) doesn’t apply, any party may apply for judgment/ order in the terms agreed. Court MAY deal with it without hearing.

97
Q

Applying to Enter a Consent Order

Court order needed where:

A

(a) Equitable relief claimed; or
(b) litigant in person;
(c) a disability (eg. a child)

Technical wording - court cannot order party to “accept” compromise. BUT – it MAY record what parties agreed. E.G. “C will accept £50,000” cannot be used, but “D will pay to C £50,000” works

98
Q

Consent Orders

Notes:

A
  • No need for hearing
  • formal app under Part 23 required
  • necessary for equitable relief to be decided by judge
  • judge doesn’t have power to make order in different terms
  • if unenforceable/not properly drafted = order returned to parties
99
Q

‘writ of execution’ includes

A

(a) a writ of possession;
(b) a writ of delivery;
(c) a writ of sequestration;
(d) a writ of fieri facias de bonis ecclesiasticis,

and any further writ in aid of any such writs, but does not include a writ of control.

100
Q

Can there be a set off for claim and counter claim?

A

Where C + CC, court MAY order set-off. Court MAY make separate costs order

101
Q

20 Enforcement

Enforcement Officials

These are:-

A
  1. Enforcement Agents (in the County Court)
  2. Enforcement Officers (in the High Court)

People appointed need to be properly certified

102
Q

Enforcing money judgments

Judgment creditor may enforce a judgment/order by:

A
  1. a writ of control or warrant of control;
  2. a third party debt order;
  3. a charging order, stop order or stop notice;
  4. in the County Court, an attachment of earnings order;
  5. the appointment of a receiver
103
Q

Writ of Possession =

A

enforcement officers remove people from land.

104
Q

Writ of Delivery

A

enforcement officers recover goods belonging to the Claimant from the Defendant.

105
Q

Writ of Sequestration

A

court appointed officers (“sequestrators”) take possession of goods belonging to D and hold onto them until the Defendant obeys a court order.

106
Q

Writ of fieri facias de bonis ecclesiasticis

A

= seizing a debtor’s ecclesiastical property to satisfy a High Court judgment. Executed by diocesan officers of the Bishop.

107
Q

Multiple Enforcement – judgment creditor MAY use more than one enforcement method at same/different time. BUT CANNOT

A

combine attachment of earnings with enforcement against goods.

Civil Lit (23 decks)

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