9. Trials, Appeals and Enforcement

Question 1

Consent orders

Answer 1

Once a matter has been settled between the parties, it is usual for that settlement to be recorded in a consent order. This has the effect of a ‘normal’ court order but indicates that the parties agree the terms it sets out, so that there is no need for the court to hear arguments from both sides (CPR 40.6 / 40B PD 3). There are two types:

A consent order based on a contract: The consent order is evidence of the contract between the parties and, as such, will only rarely be interfered with by the court. A consent order NOT based on contract: This consent order is not a contract but simply the parties agreeing terms of settlement in the claim. Such an order may be altered or varied by the court.

Once a consent order has been entered into, a defence of estoppel may be available if fresh proceedings are brought regarding matters in the agreement, but this will depend on the exact wording of the agreement.

Question 2

Tomlin Orders

Answer 2

A Tomlin Order is a type of consent order. When settling a cause of action, your client might, depending upon the circumstances of its particular case, agree either a ‘standard’ consent order with the other party or a Tomlin Order.

A Tomlin Order is made up of 2 parts; the first part is the public part and the second, the confidential part that contains the detail of the agreement reached between the parties.

A Tomlin Order is generally used when either:

• the parties wish for the key settlement terms to be confidential; and/or
• when the agreed settlement terms go beyond those that the court could generally order as part of the proceedings. This is why a Tomlin Order contains its schedule; such a schedule is not generally present in a ‘standard’ consent order.

Part 1 – ‘Order’

• Looks like any other consent order
• Public
• Contains actions to be taken by the court (and enforceable by the court) eg

Stay of proceedings

Permission to apply

Detailed assessment of costs?

Part 2 – ‘Schedule’

• Generally confidential
• Contains terms of agreement – enforceable with a further court order
• Enables parties to include provisions beyond limits of the dispute

Any direction for payment of money out of court or the payment and/or assessment of costs must be contained in Part 1, the main body of the order (40B PD 3.5). These directions require action by the court and must therefore be included in the ‘public part’ of the order (as opposed to the ‘private’ schedule).

Question 3

Putting a consent or Tomlin Order in place

Answer 3

Although consent orders and Tomlin Orders reflect the agreement of the parties, they still need the court’s approval. Once the parties have agreed the content of the order, they will need to apply to the court to have the order made.

If the court does indeed make the order, then the order takes effect like any other court order.

Sometimes settlement is reached during a period when the claim has been stayed: if that is the case, then the application for the consent / Tomlin Order is treated as an application also to have the stay lifted.

Question 4

Recording a settlement before proceedings are issued

Answer 4

It is preferable, and common, for parties to resolve their dispute without the need to issue proceedings at all. If this happens there is no need for either a consent order or a Tomlin order – there are no proceedings to dispose of. Instead, the parties will record their agreement in a settlement agreement – effectively a form of contract.

A settlement agreement still needs to be very carefully drafted to ensure that it reflects the parties’ agreement. In particular, if one party is giving up the right to bring proceedings in relation to an alleged wrongdoing on the part of the other party, a great deal of care needs to be given to define the scope of the dispute which is being settled (as there are no statements of case to define the scope of the dispute).

Question 5

Consent orders and interim applications

Answer 5

So far in this element, we have been considering settlement of a dispute as a whole. It is also possible to reach an agreement in relation to an interim application.

For example, the claimant may need an extension of time for the exchange of witness statements. If the defendant is willing, the parties can usually agree an extension of up to 28 days without the need to apply to court (CPR 3.8(4)). However, if the claimant needs a longer extension, then an application to court will usually be required, even if the defendant is willing to agree to the extension. In that scenario, the claimant would make an application to court in the usual manner but at the same time:

• A consent order would be drawn up recording the agreement (an extension of 35 days) and both parties would indicate their agreement to this consent order;
• The consent order would be filed at court – ideally when the application notice is filed, but later if necessary;
• The applicant would usually invite the court to consider the application on paper and without a hearing.

The court is not obliged to approve such a consent order – this is a case management decision, but the fact that the parties are agreed makes approval much more likely.

Question 6

Pre-trial

Answer 6

Once all the evidence has been exchanged, any issues which remain unsettled between the parties, will be the focus of the trial. It is important that the parties are fully ready for the trial and there are certain steps that the parties will need to take to ensure that the case is fully prepared for trial which may include some or all of the following:

• Pre-trial checklist/listing questionnaire
• Pre-trial review
• Brief to counsel
• Skeleton arguments
• Case summary
• Trial bundle
• Reading list
• Witness summons
• Authorities
• Notice to admit facts

Question 7

Pre-trial checklist

Answer 7

One of the standard directions given by the court on allocation for fast track and multi-track cases is a deadline by which a pre-trial checklist, form N170, is to be filed. This document is also known as a listing questionnaire.

Purpose

The pre-trial check list provides the court with another opportunity to:

• check that the case management directions previously given have been complied with and that the case is ready for trial;
• give any further necessary directions; and
• fix a date for trial (or confirm a date that has already been fixed).

The pre-trial checklist requires the parties:

• To confirm whether they have complied with the directions given (and, if not, which directions are outstanding and by what date they will be complied with).
• To specify any further directions required to prepare the case for trial and enclose an application form and draft order for those directions.
• To confirm whether the court has already consented to expert evidence being given at trial (in writing or orally). If it has not, such an order should now be sought by way of application, as outlined in point 2 above.
• To give details of experts, whether they have met to discuss their reports, and whether their reports have been agreed.
• To give details of dates within the trial period when experts will not be available.
• To give details of witnesses, their availability and any special facilities they require.
• To give details of who will present the case at trial and their availability within the trial period.
• To estimate the trial length, including cross-examination and closing arguments, and to attach a proposed timetable for trial (preferably agreed between the parties).

A pre-trial checklist is sent to each party at least 14 days before the due date for filing. The due date will be at least eight weeks prior to the trial date or the start of the trial period. Parties are encouraged to exchange copies of the pre-trial checklists before filing, to avoid the court being given conflicting or incomplete information.

Question 8

Listing directions and/or hearing

Answer 8

Once the pre-trial checklist has been filed, the court will give any further directions that are needed to get the matter listed for trial. These directions may be given with or without a hearing, as appropriate. This hearing will usually be the pre-trial review.

Guidance on directions the court must give on listing includes (PD29):

• the court will fix the trial date (or confirm the date already given);
• the court will give a time estimate for trial; and
• the court will fix the place of trial.

Other directions the court may give on listing include provision about:

• evidence (in particular that of experts or other special arrangements);
• a trial timetable;
• the preparation of trial bundles; and
• any other matters required to prepare the case for trial.

The purpose of the PTR is to check that the parties have complied with all previous orders and directions, and to give directions for conduct of the trial.

Question 9

Trial bundle

Answer 9

The purpose of a trial bundle is to ensure that all relevant material is before the court at trial so that the trial proceeds smoothly and expeditiously. The trial bundle also assists advocates to prepare for and present their cases effectively and the judge to identify any pre-trial reading.

For the trial bundle, all the documents likely to be referred to at trial should be placed into paginated and indexed files (CPR 39 and 32 PD 27).

It is the responsibility of the claimant to file the trial bundle with the court no more than seven days and no less than three days before the trial begins. Its content should be agreed where possible. If there are any areas of disagreement, a summary of the points in dispute should be included.

Preparing the trial bundle is a time consuming and repetitive task that most litigators, however senior, will remember having done (not necessarily with any pleasure) when they were very junior or a trainee. It may not be the most exciting part of the job, but as well presented, organised and accurate trial bundles are essential to a trial running smoothly, it is most certainly a job that is worth taking the time to get right. You risk the wrath of the court and may be penalised in costs if your trial bundles do not comply with the guidance in the PD. Ultimately, a disorganised bundle slows proceedings down, annoys the judge (who you want on your side) and wastes court time.

As well as filing a copy at court, the party filing the trial bundle should supply identical bundles to each of the parties to the proceedings and a further set for use by the witnesses while giving evidence (this ‘witness’ set is often filed at court too).

Question 10

What must be included in the trial bundle?

Answer 10

Unless the court orders otherwise, a trial bundle should include a copy of:

• claim form and all statements of case;
• case summary and/or chronology where appropriate;
• requests for further information and responses to these;
• all witness statements to be relied on as evidence;
• any witness summaries;
• any hearsay notices;
• any notices of intention to rely on evidence which is not;

a. contained in a witness statement, affidavit or expert’s report

b. being given orally at trial

c. hearsay evidence;

• any medical reports with responses to them;
• any experts’ reports, with responses to them;
• any order giving directions for the conduct of the trial; and
• any other necessary documents.

Question 11

What must be included in the trial bundle?

Answer 11

Reading list

In all High Court cases in the Chancery Division and the King’s Bench Division the claimant should lodge a reading list with the trial bundles. This must set out an estimate of the reading time the judge is likely to require to get to know the case and the relevant authorities properly, as well as an estimate of the length of the hearing. It should be signed by all advocates.

Skeleton argument

Skeleton arguments must be prepared for High Court trials, concisely summarising the submissions to be made and citing the authorities to be relied on. This task is usually carried out by counsel. Counsel’s clerk will ensure the skeletons are lodged at court and exchanged with the other side.

Authorities

If the case is in the High Court, a list of authorities must be submitted to the court by 5pm the day before the hearing, to enable copies of the relevant law reports to be brought into court for the hearing the next day. It is usual to agree and exchange a list of authorities with the other side.

Case summary

A short, non-contentious summary of the issues in the case should also be prepared. This is generally agreed by the parties.

Settlement

Pre-trial is the time when many cases settle. Part 36 offers should be considered or reconsidered.

If the case does settle between the listing stage and trial, the parties must notify the listing officer for the trial court immediately to enable the court to try and allocate the time to other cases. If this is not done, costs penalties are likely to be imposed.

Question 12

Notices to admit facts / documents

Answer 12

These notices relate to evidence (CPR 32.18 and CPR 32.19).

The purpose of a notice to admit facts is to formally ask the other party to admit a particular factual point that is in issue in the case. You are hoping, when serving the notice, that the other party will agree to admit the point and then you will not have to call any evidence to prove it at trial. Obviously, in order for the other side to consider admitting it, you will have already served evidence or had some sort of dialogue supporting your point.

Once the notice is served, the person receiving the notice needs to decide what to do. If they do not admit the point, the evidence will be called at trial. The judge will decide whether the fact is correct or not. If the judge agrees that it was correct, the party receiving the notice is vulnerable as they ought to have agreed the fact when given the chance earlier and avoided wasting time at the trial. Therefore, they are likely to face cost consequences and not be treated as favourably when the court exercises its discretion on costs at the end of the case.

Notices to admit documents work along similar principles. The underlying point is that a party is deemed to admit the authenticity of documents disclosed to them unless they serve notice that they wish the document to be proved at trial (CPR 31).

Question 13

Brief to counsel

Answer 13

Counsel will likely be briefed to appear at trial in which case his or her instructions to appear on your client’s behalf (the ‘brief’) need to be sent to counsel with a full set of trial documents in good time. In complex multi-track cases, counsel will usually be involved throughout the case and will not need a detailed brief as such. In smaller, less complex cases, the brief will need to summarise the whole of the case to date to enable counsel to prepare fully for the trial. The brief fee will be agreed with counsel’s clerk and will cover both the preparation for, and the first day of, the trial. It is usual to have staged payments in larger cases and written agreements as to what precisely is included in the brief (e.g. weekend working or closing submissions). If a case settles after the brief is delivered, the brief fee (or staged payments already due) will not be refundable (unless the parties have agreed otherwise). Shortly before delivery of the brief is therefore a point at which cases often settle. Subsequent days of trial (i.e. after the first day of the trial) are paid by an agreed fee per day, known as the ‘refresher’.

Question 14

Secure attendance of witnesses and experts

Answer 14

Reluctant witnesses or, equally, those expert witnesses with other commitments e.g. NHS consultants, may be compelled to attend trial by issuing and serving on them a witness summons in Form N20 (CPR 34.2). The witness summons may require the witness to attend to give oral evidence, or to produce specified documents, or both.

Question 15

Court room etiquette

Answer 15

During trial (and indeed any court hearing), the following rules of etiquette should be followed:

• Legal representatives (and generally parties) should dress formally.
• In some contexts, a legal representative should stand when speaking and sit when not speaking.
• See the element explaining the civil court system for how to address a judge. In addition, legal representatives should address court indirectly: so try to avoid referring to a judge as ‘you’. A legal representative should say ‘has Your Honour received my skeleton argument?’ instead of ‘have you received my skeleton argument?’ .
• An opponent’s representative is referred to as ‘my learned friend’ if a barrister, or ‘my friend’ if a solicitor.
• When the judge either enters or leaves the courtroom, everybody must stand, and wait for the judge to sit / leave the room before sitting down, and bow to the judge when the judge bows (which will be on entering and before leaving).
• If speaking first in court, a legal representative should introduce their opponent(s), by name, and state the party they represent. They should introduce themselves by identifying the party they represent, without stating their own name.
• An advocate should never indicate what they ‘think’ - submissions should be advanced using ‘it is submitted…’ or ‘I submit…’ instead.
• A legal representative should not approach the bench (where the judge sits) without permission.

Question 16

Claimant’s opening speech

Answer 16

In the opening speech, counsel for the claimant will usually describe the nature of the claim and will identify the issues to be tried by reference to the statements of case, statement of issues and key documents. The judge will generally have read the key documents in the trial bundle, and in smaller cases the judge might dispense with the need for opening speeches.

Question 17

Claimant’s Case

Answer 17

Evidence will then be called on behalf of the claimant. Such evidence may include the evidence of witnesses (of fact and experts), real evidence and documentary evidence. The witness statement of a witness will stand as the evidence-in-chief of that witness (unless the court orders otherwise) (CPR 32.5(2)). The witness will take the stand and confirm that it is their evidence.

The defendant’s counsel may then cross-examine the witness. Cross-examination may (and usually will) be conducted using leading questions (ie questions suggesting a particular answer). An example of a leading question is ‘so you breached the contract by failing to deliver the goods on time?’ The purpose of cross examination is to challenge any weaknesses in the evidence, or the credibility of the witness.

Finally, counsel for the claimant may re-examine the witness on matters covered in the cross-examination. Non-leading questions are used in re-examination, for example, ‘when were the goods delivered?’ Leading questions are not allowed in re-examination.

Question 18

Defendant’s case

Answer 18

The defence will then call its evidence in the same way as the claimant. In larger cases this may be preceded by a defendant’s opening speech. As with the claimant’s witnesses, the witness statement of each witness will generally stand as the evidence-in-chief of that witness. The claimant’s counsel will then have an opportunity to cross-examine the witness. Finally, the defendant’s counsel may then re-examine on matters covered in cross-examination.

Question 19

Closing speeches

Answer 19

The defence will then make a closing speech. Here, counsel for the defendant will generally refer to the evidence adduced, highlight any inferences to be drawn from that evidence, and how this supports the defence.

The claimant’s counsel will then make a closing speech, referring to the claimant’s evidence, inferences to be drawn from this, and how this supports the claimant’s case.

Question 20

Judgments and final orders

Answer 20

A judgment or any other type of ‘final’ order is an order which ends the claim.

For example, a judgment might be given in favour of the claimant ordering the defendant to pay an amount of money in respect of the damages claimed.

A judgment / order will also make provision for costs, so the successful claimant having been awarded damages from the defendant would expect the judgment to award that the defendant pays the claimant’s costs of the action as well.

Judgments and final orders are made after the trial or final hearing of a matter, or in accordance with provision made in the CPR for earlier judgments, for example, default judgment (CPR 12) and summary judgment (CPR 24).

Question 21

Other types of order

Answer 21

Interim orders are those made at any time in a claim up to trial which do not finally conclude the matter.

For example: an interim application along the way to trial asking for permission to amend the statements of case will state the permission given, make an award in relation to interim costs and the claim will continue.

In some circumstances (eg following a summary assessment of costs at an interim hearing), there will be an amount payable immediately following an interim order, and the provisions below in relation to when an order is effective and payment will still be relevant.

If a case is settled along the way, a consent order will be required, which will also be approved by the court, as the court will need to be notified of any settlement and that the claim is at an end. The order may also assist in enforcing the agreement reached.

Question 22

Judgment after trial / final hearing

Answer 22

Judgment may be handed down by the judge immediately following trial. If the matter is complicated however, it is likely that judgment will be reserved which means that the judge will deliver the judgment at a later date.

Where this is the case, the judge can invite the parties’ legal representatives to give their views on how the judgment should be handed down. The judge will usually circulate the judgment in draft to the parties in advance of formally handing it down (by 4pm on the second working day before handing down) so parties can prepare costs submissions and provide the judge with details of obvious errors (typos, incorrect references etc). The judge may do this by email to the parties’ representatives.

There are restrictions on what can be done with the judgment pending its handing down; it is not a public document until it is handed down.

After judgment is given the parties will make appropriate costs submissions and the judge will make a costs order.

When attending trial, your priority as a legal representative should be to make as good a note of the proceedings as you can.

This may be critical if you wish to appeal. While judgments are always recorded and it is possible to obtain transcripts, it is unusual for this to be the case with witness evidence and legal argument save in large matters where the parties will usually have either a daily transcript or an immediate transcript eg live note.

Question 23

Disposal hearing

Answer 23

In some cases it may be appropriate to hold a split trial. This means that the court decides to firstly hold a trial to decide who is to blame and then, assuming the defendant is found liable, some time later there will be a further trial or hearing to assess the level of damages. This hearing is known as a disposal hearing. The court will usually allow a split trial in cases where the evidence on liability is different to the evidence on quantum, and it will further the overriding objective to hold two separate hearings.

Question 24

Drawing up and service of judgments/orders

Answer 24

‘Drawing up’ an order means setting the order out in the formal document to be sealed by the court.

The order will by drawn up by the court, unless the court orders a party to draw it up or a party (with the permission of the court) agrees to draw it up or the court dispenses with the need to draw it up or it is a consent order (CPR 40.3). If an order is to be drawn up by a party, the party drawing the order up is required to file it no later than 7 days after becoming responsible for doing so, in order that the court can seal it.

They must also file sufficient copies for service on themselves and the other parties at the same time and, once sealed, the court will serve the sealed order on everyone (CPR 40.4).

A consent order is drawn up by the parties.

If the party responsible for drawing up the order fails to do so within the 7 day time limit, any other party may do so instead.

There is also provision built in for the court to check and approve the contents first and for the other parties to be involved in agreeing the contents where appropriate. If preferable, the court may direct or agree that a party is responsible for service of the judgment / order.

The rules in relation to drawing up and service of orders differ across specialist divisions (eg Chancery and commercial court) so always check specialist court guides if dealing with claims in divisions other than the King’s Bench Division.

Question 25

When a judgment / order takes effect

Answer 25

A judgment or order is effective from the date it is given or made, not served (CPR 40.7).

• Judgments will usually include an amount of interest which was awarded as part of the claim. Once judgment has been given and the claim is concluded, interest starts to run on the amount of the judgment debt from the date on which the judgment is given (CPR 40.8). The rate of interest on judgment debts is set at 8% per annum under section 17 Judgments Act 1838 (as amended).
• The parties have a time limit of 14 days in which to comply with a judgment or order for the payment of an amount of money, unless otherwise specified by the court (CPR 40.11). This means that payment of the judgment debt will be due within 14 days from the date of the order, plus the interest which will have been running during that time post judgment.
• The court has discretion to allow a stay of execution of the judgment or order (ie more time to pay or take the steps ordered before enforcement is possible) on the grounds of matters which have occurred since the date of judgment or order on application by the party against whom the judgment or order has been made (CPR 40.8A). For example, a stay might be allowed pending appeal against the judgment or order.

Question 26

The Debt Respite Scheme

Answer 26

The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 provide temporary protection from a judgment / order for some judgment debtors (people who owe money pursuant to a judgment). The Scheme allows an individual debtor (not a company) to approach a debt advice provider (which might be a local authority) to ask for ‘breathing space’ of 60 days on the basis that they are unlikely to be able to repay their debts. If the debt advice provider considers it appropriate then they can start a breathing space via the insolvency service, which then notifies the debtor’s creditors.

During the breathing space period the judgment creditor (the person with the benefit of the judgment) must stop all enforcement action to recover the debt, stop any interest, fees, penalties or charges for the debt, and not contact the debtor requesting payment (unless the court gives permission). Unless the court gives a creditor permission to continue, the court must also make sure any action to enforce a court order or judgment about a breathing space debt stops during the breathing space.

Any judgment for damages for death or personal injury caused to someone else is excluded from the scheme.

A breathing space of potentially longer duration, and governed by slightly different rules, may be available to a debtor with a mental health crisis.

Question 27

Costs

Answer 27

Based on its judgment or final order, the court will also decide the final costs order.

The general rule governing whether costs are payable by one party to another is that ‘costs follow the event’. This means that the unsuccessful party (ie the loser) pays the costs of the successful party (ie the winner) (CPR 44.2(2)(a)).

However, while costs will normally follow the event the court has complete discretion in this area. As such it can depart from the general rule and take a number of other factors into account (CPR 44.2(4) and (5)) to make a different costs order in respect of some or all of the issues under consideration.

Full details of costs are in separate costs elements.

Question 28

Investigating the opponent’s means

Answer 28

One of the very first considerations before any action is taken at all in litigation is the prospective opponent’s financial status and what will need to be done if they can pay but won’t, or if their assets are located abroad or will be difficult to enforce against.

· Whether the defendant is able to or will pay any judgment given must always be considered both before an action is commenced and as it progresses. There is little point in your client incurring the costs of litigation through to obtaining a judgment if this judgment is likely to remain unsatisfied.

· Post judgment the searches and investigations already taken can be repeated and updated and, as part of the enforcement proceedings, the judgment creditor can apply to the court for an order to obtain information from the judgment debtor (CPR 71). This requires the debtor to attend court and give information directly about their assets.

It is important to ensure the assets intended to enforce against belong to the debtor (eg are not leased or belong to another such as the debtor’s employer) and are not jointly held with another person, such as a spouse who might have an overriding interest in them.

Question 29

Order to obtain information from the judgment debtor

Answer 29

As mentioned above, once a judgment has been obtained, it is possible to involve the court in obtaining information directly from the judgment debtor about their assets (CPR 71). This is likely to be appropriate where little is known about the judgment debtor.

A judgment creditor may apply for an order requiring:

• a judgment debtor; or
• if a judgment debtor is a company or other corporation, an officer of that body

to attend court to provide information about the judgment debtor’s means or any matter about which information is needed to enforce a judgment or order (CPR 71.2(1)). This procedure is known as ‘oral examination of a debtor’.

Question 30

Procedure

Answer 30

There are separate forms depending on if the application is to question an individual judgment debtor (Practice Form N316), or if the application is to question an officer of a company or other corporation (Form N316A).

This application may be made without notice to the judgment debtor (CPR 71.2(2)).

The order must contain a ‘penal notice’, stating:

‘If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized’ (CPR 71.2(7)).

Unless the court orders otherwise, the order to attend court must be served personally on the person ordered to attend court not less than 14 days before the hearing (CPR 71.3(1)).

The judgment debtor must then attend court and produce any documents referred to in the order, and answer any questions asked of them on oath (CPR 71.2(6)). Standard questions are contained in questionnaires (available in the online version of the CPR) for use at such hearings.

The questioning will be carried out by a court officer or a judge if deemed necessary. There are standard procedures and questionnaires that will be used (PD 71, forms EX140 and EX141).

If the judgment debtor fails to attend the hearing or attends but refuses to comply eg refuses to answer questions, the matter will be referred to a judge who may make an order for the judgment debtor’s committal, as set out in the penal notice.

Question 31

Investigating the debtor’s means

Answer 31

Investigations about the debtor’s means will have taken place at the outset of the matter. The first source of information about the opponent is your client, who will often have detailed knowledge of their counterparty through, for example, having done business with them for a prolonged period and having often operated in the same industry.

You might also have done some or all of the following, for example:

• conducted a company search;
• applied for official copies from the Land Registry;
• searched against other relevant registers; and / or
• instructed an enquiry agent to report.

These investigations will need to be updated or repeated at the end of the action, post judgment, in order to work out the most effective likely method of enforcement. There may be additional investigations you will also carry out at this time to help decide which of the methods of enforcement it will be best to use.

Question 32

Enquiry agents and company searches

Answer 32

Enquiry agents are essentially private investigators who, through a variety of means, are able to procure quite extensive information on individuals or companies upon request. They are, however, expensive. If they have to be used, a reputable firm should be instructed since any misconduct will be imputed to the solicitor.

Alternatively, you can actually find out much of this information yourself: either by asking your client, conducting company searches (and knowing how to extract the maximum information from them), applying for official copies from the Land Registry and so on.

Company searches allow you to access information companies are required to file at Companies House, including a company’s annual accounts. Although the information will not always be completely up to date by the time you access it, a company search will reveal extensive financial information about:

• the company’s general solvency;
• the company’s assets; and
• whether those assets are charged.

Question 33

Registers

Answer 33

There are a number of registers containing information which can be very useful when considering enforcement proceedings. These include:

Land Charges Registry

This records restrictions or prohibitions on the use of a property and any charges against it. You might use information from this to work out if there is any equity in a property owned by the debtor and whether an order for sale would ultimately be possible or not.

Individual Insolvency Register

This lists people who have been made bankrupt or who have Debt Relief Orders or Individual Voluntary Arrangements (IVAs) in place. Such orders and arrangements restrict how the debtor’s assets can be distributed so will impact the enforcement methods that will be effective.

Attachment of Earnings Order Index

The index shows the debtors against whom there are attachment of earnings orders in force – these orders are discussed in more detail later on in this topic.

The Register of Judgments, Orders and Fines

All County Court judgments from April 1990 onwards are entered on this register and remain registered for six years. If the judgment is satisfied within one month, the entry may be cancelled at the judgment debtor’s request (s.13(2) of the Register of Judgments, Orders and Fines Regulation 2005 (for England and Wales) (the ‘Register Regulation’)). If the judgment is satisfied after this one month period, the judgment debtor may obtain a certificate of satisfaction to show the amount due has been paid (but the judgment will remain on the register) (s.13(3) of the Register Regulation).

Since April 2006, High Court judgments are also now recorded on this register (though not those relating to family proceedings or judgments made by the Technology and Construction Court). The information included in the register is set out at s. 10 of the Register Regulation and includes the debtor’s name, address and the amount of the outstanding debt.

From this register you will be able to see if your debtor already has any unsatisfied judgments registered against them, and who holds those judgments. There may be ongoing enforcement proceedings already in relation to those judgments which could impact the decisions you will make in relation to the judgment you intend to enforce.

Question 34

The opponent

Answer 34

It is also necessary to consider some features of the opponent, as well as their assets:

The legally aided opponent: In the event that the other side is in receipt of legal aid then, win or lose, your client will not recover its costs and may not recover damages. This may affect the whole of your litigation strategy.

Dissipation of assets: As mentioned above, a judgment may be obtained in your client’s favour but that does not mean that the other side will pay. It may be that the assets have been dissipated (disposed of or moved) in anticipation of the judgment in your client’s favour. There are ways of preventing an opponent from dissipating assets which might be considered now, for example, obtaining a freezing injunction.

The insured opponent: If your opponent carries insurance for the risk involved it may mean that they will be entitled to be indemnified by the insurance company for some or all of the damages and/or costs that are to be paid out to your client and payment is more easily forthcoming to the judgment creditor as a result. Insurance cover is compulsory for certain risks, for example employers’ liability and motor insurance. Most professionals are also required to take out insurance for their work.

Order to obtain information from the judgment debtor

Once a judgment has been obtained, it is possible to use the procedure to involve the court in obtaining information directly from the judgment debtor about their assets (CPR 71). This can help determine how best to enforce a judgment. This is covered in the element introducing you to enforcement.

Question 35

Other jurisdictions

Answer 35

If the judgment debtor has assets which are abroad it may be necessary or desirable to take steps to enforce a judgment of the English court (obtained against the debtor in English proceedings) in a foreign jurisdiction.

If the judgment creditor has a judgment from a foreign court to enforce against assets here it will be necessary to use the English courts to facilitate this.

Question 36

Regimes

Answer 36

The United Kingdom (UK) is currently a signatory to a number of conventions and treaties which facilitate the enforcement of judgments abroad. These are generally reciprocal; a judgment from a court of England and Wales can be enforced in a foreign jurisdiction which is a party to a reciprocal arrangement and a foreign judgment can likewise be enforced in England and Wales.

Most of these arrangements are based around a system of registration, whereby judgments of one country can be registered in another country and are then treated as if they were judgments of that country for enforcement purposes.

There are different regimes deriving from a variety of provisions and conventions depending upon which foreign jurisdiction is involved. For example, the provisions in relation to former Commonwealth countries and other countries are all different.

It is worth noting that after the UK’s withdrawal from the EU (Brexit), many reciprocal agreements that the UK had with EU member states ceased to apply to judgments instituted after 31 December 2020. One that does apply is the Hague Convention on Choice of Court Agreements to contracting states. This means, for example, that the Hague Convention applies to the enforcement of English and Welsh judgments in EU states, but only where the English court had jurisdiction under an exclusive choice of court agreement. Jurisdiction is explored in another Chapter.

Question 37

Common law

Answer 37

Where no relevant regime applies (either because the country concerned is not a party to a reciprocal enforcement regime or because the nature of the judgment means that it is not enforceable under the regime), the position is governed by the common law.

This tends to result in the enforcement of judgments being much more difficult.

Ø If enforcing an English judgment abroad under the common law, this will be governed by the common law of the country in which you are seeking to enforce the judgment. You would need to seek advice from a local lawyer in the foreign country.

Ø If enforcing a foreign judgment in England & Wales under the common law, it will be necessary to obtain a judgment from an English or Welsh court. Usually this is done by treating the foreign judgment as a debt, issuing proceedings for non-payment of that debt and then applying for summary judgment (CPR 24). This can only be done if the judgment is a final one and there is no appeal in the foreign court.

Question 38

Procedural steps

Answer 38

Ø The first step therefore is to identify which foreign jurisdiction you are dealing with and which, if any, regime applies.

Ø You would then follow the relevant procedure according to an applicable regime or the common law as well as the CPR (CPR 74).

The procedural rules will be different depending on whether you wish to:

• Enforce a judgment of the High Court or County Court in a foreign country (the focus of the remainder of this section), or
• Enforce a judgment of a foreign court in England and Wales, or
• Enforce a UK judgment in another part of the UK.

For enforcement in foreign countries of a High Court or County Court judgment, firstly, the judgment creditor must apply for a certified copy of the judgment (CPR 74.12). The application may be made without notice. The application must be supported by written evidence (CPR 74.13) exhibiting the claim form, statements of case and the evidence that was served on the defendant.

The evidence must:

• Identify the grounds on which the judgment was obtained
• State whether the defendant objected to the jurisdiction
• Show that the judgment has been served
• State appeal details eg the date on which the time for appealing expired
• State whether interest is recoverable on the judgment.

Once a certificate of judgment has been obtained, the judgment creditor should follow the procedure in the applicable regime or common law to enforce the judgment abroad.

Question 39

Taking Control of Goods (‘TCG’)

Answer 39

This procedure allows an enforcement officer (‘EO’), which includes those who were formerly known as bailiffs and High Court sheriffs, to seize a judgment debtor’s goods and sell them in order to use the proceeds of sale to satisfy the judgment debt and expenses. TCG was introduced from 6 April 2014 (Taking Control of Goods Regulations 2013) and replaced the previous equivalent common law process of execution against goods.

TCG should be a quick and simple method of enforcement as long as the judgment debtor has goods which can be taken and sold off. It is essential that the goods to be enforced against are owned by the judgment debtor and also that there are no third party claims to the goods from anyone else, for example, co-owners or higher ranking creditors.

The rules contain detailed procedure regarding TCG (CPR / PD 83 - 86). The application will be made in accordance with the standard interim application procedure (CPR 23) as modified by these rules.

Question 40

Exempt goods

Answer 40

TCG can generally be used against any goods belonging to the judgment debtor. There are some exempted items which cannot be seized and sold however.

The most important exemptions are:

tools of the judgment debtor’s trade which are exempt, but only to an aggregate value of £1,350; and

basic domestic items, such as clothing, bedding, furniture and essential household items.

These goods are protected against seizure so that the judgment debtor can continue to live and work, albeit to a less comfortable standard than he might previously have enjoyed. (Regulation 4(1)(b) of the Taking Control of Goods Regulations 2013).

Question 41

Which Court?

Answer 41

In most cases the judgment creditor can apply for TCG as soon as judgment has been obtained and the judgment debtor has failed to pay by the time payment is due. The High Court and County Court procedures for TCG are different and the judgment creditor will first need to decide which court to proceed in.

The following table summarises the financial limits applying to each court in relation to where enforcement action should be commenced (High Court and County Courts Jurisdiction Order 1991):

Debt sum up to £600 – Must use County Court

Debt sum between £600 and £5000 – Can use either High Court or County Court

Debt sum more than £5000 – Must use High Court

(Different rules apply for debts regulated by the Consumer Credit Act 1974. Enforcement of such debts is not examinable in this topic.)

Question 42

How to apply for TCG

Answer 42

The judgment creditor commences the process of TCG by requesting the issue of the relevant court document as follows and will also need to pay the applicable fee:

High Court – Writ of control

Country Court – Warrant of control

The writ or warrant of control is addressed to the EO and it is this document that entitles the EO to seize and sell the judgment debtor’s goods to raise funds to satisfy the judgment debt.

The writ or warrant will contain:

The necessary details and amount of the outstanding debt to be recovered.

A fixed amount for the costs of TCG will be added which includes the court fee.

The EO is also able to take their own charges out of the proceeds of the goods sold and seized. It is advisable for the judgment creditor to supply the EO with any available information about the judgment debtor’s goods and their whereabouts to aid the recovery of items as swiftly as possible.

Question 43

3 stage process

Answer 43

After the writ or warrant of control has been delivered to the EO the process of TCG has 3 stages:

(1) Giving notice to the judgment debtor of enforcement

(2) Entering premises and securing the goods

(3) Sale of the goods

We will look at all 3 stages in turn.

Stage 1: Giving notice to the judgment debtor of enforcement

Any attempt to take control of goods has to be preceded by the giving of advance notice to the judgment debtor.

The EO will write to the judgment debtor at least 7 clear days before taking control of any goods.

The EO is not required to specify exactly when he will attempt to take the goods. The EO has 12 months from the date of giving notice in which to take control of the judgment debtor’s goods.

The judgment debtor is therefore at risk of TCG happening at any time in this period after notice has been given.

Stage 2: Entering premises and securing the goods

The EO may use reasonable force to enter premises if necessary (this does not include using force against persons) but there are restrictions on the process.

For example, the EO must generally not take control of goods before 6am or after 9pm on any day, nor at any premises when a child or vulnerable person is the only person present.

Once entry has happened, the EO may secure goods on the premises or highway or remove goods from the premises ready for sale.

After entry of premises the EO must provide a notice for the judgment debtor giving details of what is happening. For example, the notice will contain the EO’s details, the address of the property entered, and information will also be given about what goods have been taken in the form of an inventory.

Controlled goods agreement

An alternative to removing goods at this stage is for the EO to enter into a controlled goods agreement with the judgment debtor.

This is an agreement whereby the judgment debtor is permitted to retain custody (and use) of the goods, despite the EO taking control of them, pending payment of the debt.

The agreement will include terms agreed between the EO and the judgment debtor for payment of the debt. It is a ‘last chance’ for the judgment debtor to pay up before losing their goods.

The previous equivalent common law process was known as ‘taking walking possession’.

Stage 3: Sale of the goods

Unless the judgment debtor now makes payment of the debt, the goods must be sold by the EO.

The EO must sell the goods for the best price that can be reasonably obtained, and the sale will usually take place by way of public auction.

The sum specified in the writ or warrant of control will be paid to the judgment creditor out of the proceeds of sale and recovery will be complete. Any surplus funds are paid back to the judgment debtor.

Question 44

Third Party Debt Orders

Answer 44

This procedure is appropriate when there is a ‘debt due or accruing due’ to a judgment debtor by a third party within the jurisdiction.

Examples include money the judgment debtor may have in a bank account and trade debts owing to the judgment debtor. Note however that a third party debt order cannot be obtained against a bank account in the joint names of the debtor and spouse.

Upon the application of a judgment creditor, the court may make an order requiring a third party to pay to the judgment creditor some or all of a debt owing to the judgment debtor by the third party, in satisfaction of the judgment debt and the judgment creditor’s costs of the application (CPR 72.2(1)).

In short, the order intercepts money owed to the debtor by a third party before it reaches the debtor’s hands, requiring the third party to pay the money to the judgment creditor instead.

Question 45

Third Party Debt Orders Procedure

Answer 45

The procedure requires the third party to search for and disclose information to the court and judgment creditor (CPR 72.6). Any third party, or judgment debtor, who objects to the making of the order must file and serve written evidence stating the grounds for the objection.

The rules provide first for an interim order to be made without notice to the judgment debtor (CPR 72.4). This will be served on the third party first and prevents the third party from making any payment to the judgment debtor until further order.

The interim order will then be served on the judgment debtor and will be followed by an on notice hearing where the judgment debtor (and third party if they wish) will be heard. The court will decide whether to make a final order requiring the third party to pay the debt to the judgment creditor directly or to discharge the interim order. The application is started by the judgment creditor making the application in Form N349 (72 PD).

Question 46

Charging Orders on land or certain securities

Answer 46

A charging order is a form of charge taken over land (or other specified assets) which secures a judgment debt. It therefore does not, of itself, produce any money.

Once the charging order is made final it will generally remain in place until the property is sold by the debtor, at which point the debt will be paid using the sale proceeds and the charge removed as part of the process of selling the property. It is, of course, also subject to any prior mortgages and charges, and the overriding rights of any co-owners of the property.

Like third party debt orders, applications for charging orders follow a similar two-stage procedure with an interim order followed by a final order. In summary then, to obtain payment using this method the judgment creditor needs to obtain a) an interim charging order; and b) a final charging order (CPR 73).

After obtaining a final charging order, the judgment creditor may want to force the sale process rather than wait for it to happen, in which case a subsequent application needs to be made for an order for sale before any funds can be realised. This process can be somewhat lengthy.

Question 47

Attachment of earnings orders

Answer 47

As mentioned earlier, this method of enforcement is available only in the County Court, so if the judgment creditor wants to use it, the judgment (ie debt) must be transferred to the County Court.

It is available where the judgment debt or amount outstanding is not less than £50. If the order is obtained:

a. The judgment debtor’s salary will have deductions made from it by their employer.

b. These deductions will be paid into court for onward transmission directly to the judgment creditor.

This method of enforcement is most relevant where a debtor does not have substantial assets but does earn a salary from employment.

Question 48

Attachment of Earnings Procedure

Answer 48

The procedure (CPR 89) can be summarised as follows:

The judgment creditor applies by filing an application in a standard form, certifying the amount of the judgment that is outstanding and paying a fee.

The application and a reply form is served on the debtor who should complete and return the reply form to the court.

The court may then make an order (without the attendance of either party) attaching a proportion of the judgment debtor’s earnings.

That order is served on the debtor and the judgment debtor’s employer who is required to make the appropriate deduction from the debtor’s earnings and pay it to court for onward transmission to the judgment creditor.

These consequences of the order are as set out in section 6 Attachment of Earnings Act 1971.

Question 49

Problems that can arise

Answer 49

Obviously, a debtor is not obliged to stay in the same job and, by the time the order has been obtained, or while it is enduring, the debtor may change jobs. Where it appears to the County Court that an employer does not have the debtor in their employment, the court may discharge the order and the judgment creditor will need to start again in respect of enforcing any outstanding balance.

There is opportunity for delay if the judgment debtor chooses not to return the reply form. The court staff will then issue an order served personally on the judgment debtor compelling the judgment debtor to respond. Eventually this process can lead to the judgment debtor being imprisoned, but further hearings are required.

Question 50

Insolvency proceedings

Answer 50

A very useful method of enforcement (which has its own separate set of rules) is proceedings for insolvency. This includes bankruptcy (for individuals) and winding up (for companies).

A petition for bankruptcy against an individual can be issued when the judgement debt against them is more than £5,000.

A petition to wind up a company can be issued when the judgment debt against it is more than £750.

Question 51

Insolvency procedure

Answer 51

The petition is issued and presented to the judgment debtor’s local court.

Once the petition is issued, it is served on the judgment debtor.

The court fixes a time for the hearing of the petition and the debtor will therefore be notified of a date to attend a court hearing to decide whether a bankruptcy order or winding-up order should be made against them.

If they do not attend to oppose the petition at the hearing, the bankruptcy or winding up order will very likely be made.

The debtor’s assets will be distributed to their creditors according to very specific rules setting out the order of preference of particular types of creditor (eg employees, secured creditors, unsecured creditors and so on.)

It is important to know what other debts the judgment debtor has as your client will not be ‘preferred’ to any other of the judgment debtor’s creditors and may end up at the end of the queue sharing in assets pari passu (ie in proportion to the amount owed to each non-preferential creditor) on a bankruptcy/winding up.

Question 52

Statutory demands

Answer 52

A statutory demand might be served on the debtor prior to the petition being issued. This precursor to insolvency proceedings being commenced is a demand in a simple standard form. So long as the debt remains unpaid for a period of 21 days after service of the demand, the debtor is at risk of the court presuming that he/it is unable to pay its debts and is therefore insolvent. This makes the bankruptcy or winding-up petition much more difficult for the judgment debtor to resist.

Serving a statutory demand is a very simple and low cost step for the judgment creditor to take and can be highly effective.

Insolvency is an extremely effective method of getting payment if there is money available. Clients tend to prefer this method because the threat of being made bankrupt or wound up provides a strong incentive to the judgment debtor to settle the judgment debt.

The consequences of being made bankrupt or wound up are significant. The debtor loses control of their assets, may be prevented from undertaking certain roles (such as being a company director, for example) and a company that is wound up will be unable to continue trading.

Question 53

Grounds of appeal

Answer 53

As mentioned above, the appeal court will allow an appeal where the decision of the lower court was either:

• Wrong (CPR 52.21(3)(a)); or
• Unjust because of a serious procedural or other irregularity in the proceedings in the lower court (CPR 52.21(3)(b)).

The appellant needs to satisfy the appeal court that one of these grounds is met in order for their appeal to be successful.

The normal practice is for appeals to take the form of a review of the lower court’s decision based on the evidence and representations the lower court heard, rather than a re-hearing of the matter in question (CPR 52.21).

This means that when assessing whether either of the grounds of appeal have been made out, the appeal court will normally not have access to any new evidence and will not have had the benefit of being able to hear and examine the evidence ‘live’ as the lower court has done.

Question 54

Wrong decisions in the lower court

Answer 54

A decision can be wrong in this context due to either:

• an error of law; or
• an error of fact; or
• an error in the exercise of the court’s discretion.

The appeal court will be mindful of the fact that they will not have access to the evidence in the same form as the lower court had when reviewing decisions the lower court made. The appeal court will therefore be reluctant to declare the lower court’s decision wrong if, for example, that decision was primarily based on an assessment of evidence which the appeal court is unable to conduct.

Question 55

Unjust decisions in the lower court

Answer 55

This is an onerous ground to prove. The irregularity must be ‘serious’ and it must have caused the lower court’s decision to be unjust. However, succeeding on this ground does not depend on the decision of the lower court being wrong, so it may apply even if the same decision would have been reached without the irregularity.

There are many ways in which an irregularity might occur.

Examples include:

• A party being given no chance to make submissions.
• A party’s submissions or too much of their skeleton argument being incorporated into the judgment.
• The lower court judge having been involved in previous proceedings.
• The manner in which the judge handled the evidence.

Question 56

Permission

Answer 56

The appeal system involves a ‘permission’ stage – before an appeal court will decide whether either of the grounds for appeal is established, the party that wants to appeal needs to obtain permission to appeal, save in exceptional cases (CPR 52.3).

The prospective appellant has a choice in relation to how and when they apply for permission to appeal. They can either:

Apply for permission from the lower court at the time when the decision to be appealed is made. Done orally (parties are already before a judge). Saves time for the court and parties. Can save costs. Does not prevent later application to the appeal court.

AND/OR

Make the application to the appeal court later. Done in writing, using Form N161, and usually no hearing. More time to prepare the application, Can pursue even if applied unsuccessfully to lower court.

Question 57

How the application for permission will be dealt with

Answer 57

Where the appeal court is the Court of Appeal

Since 2016, where the appeal court is the Court of Appeal, the default position is that applications for permission will be determined on the papers alone, unless the judge considers that the matter should be dealt with orally, in which case they can exercise their discretion to summon the parties for an oral hearing (CPR 52.5).

Judges have a duty to direct that a hearing takes place if they are of the opinion that they cannot ‘fairly determine’ the application on the papers. Any oral hearing will be listed within 14 days, unless the circumstances are exceptional.

Where the appeal court is the County Court or High Court

If the appeal court is the County Court or High Court, then if that appeal court refuses the paper application for permission, the appellant may normally request (within 7 days after service of the notice refusing permission) that the decision be reconsidered at an oral hearing (CPR 52.4).

If permission is refused at that oral hearing, no appeal against that decision is possible.

Question 58

Time limits for obtaining permission / appealing

Answer 58

The general rule is that an appeal (including the application for permission if this has not already been granted) must be made within 21 days of the date of the lower court’s decision and using Form N161 – the ‘Appellant’s notice’ (CPR 52.12(2)(b)).

The court may order differently (CPR 52.12(2)(a)). If a party has a good reason for seeking a longer period in which to appeal it can apply to the lower court for an extension of time (52BPD 3).

Judgments and orders take effect from the date they are given or made or such later date as the court may specify (CPR 40.7(1)). A delay in formally drawing up a judgment or order will not delay time running for the purpose of making an appeal.

Question 59

Test for granting permission – first appeals

Answer 59

How will the court (be it the lower court or the appeal court) decide whether to grant permission?

Permission will only be granted where the court considers (CPR 52.6):

• that the appeal would have a real prospect of success (note the similarity to the test for summary judgment); or
• that there is some other compelling reason why the appeal should be heard.

Question 60

Test for granting permission – second appeals

Answer 60

Second appeals are, as the name suggests, appeals of the decision made on the first appeal of a lower court’s decision. Some second appeals will be heard by the Court of Appeal and the test for permission is slightly different.

The Court of Appeal will not give permission for a second appeal to go ahead unless it considers that (CPR 52.7):

• the appeal would have a real prospect of success and raise an important point of principle or practice; or
• there is some other compelling reason for the Court of Appeal to hear it.

An order giving permission to appeal (either for first or second appeals) may limit the issues to be heard and be made subject to conditions (CPR 52.6(2)).

Question 61

Permission granted – what happens next?

Answer 61

If permission is granted, this means that the appeal can proceed.

The appellant’s notice (Form N161), which is used to request permission if necessary, doubles as the document which initiates the appeal itself.

In it, the appellant also gives details of the grounds of their appeal and other information, evidence and supporting documentation.

The appeal court uses the contents of the appellant’s notice to progress the appeal to its final determination

Question 62

Stay

Answer 62

The general rule is that an appeal does not operate as a stay of execution on the order of the lower court. Your appellant client needs to be made aware that the offending judgment is still effective and might be enforced pending appeal.

Sometimes this general rule could lead to unfairness, for example, a disproportionate outcome if the order is enforced and is subsequently reversed. The High Court and the Court of Appeal therefore do have power to order a stay pending the outcome of any appeal process (CPR 52.16). A stay pending appeal will generally not be ordered but in certain circumstances it will be justified and the application should be made.

Question 63

Routes of appeals

Answer 63

The ‘route’ of an appeal (also referred to as the ‘destination’ of an appeal) refers to which court / judge will be the appeal court for the lower court’s decision. As a general rule, appeal lies to the next level of judge in the court hierarchy. The general rules can be summarised as follows (52APD 3.5):

• Appeal from County Court District Judge; appeal to County Court Circuit Judge.
• Appeal from County Court District Judge dealing with non-insolvency proceedings brought pursuant to the Companies Acts; appeal to High Court.
• Appeal from County Court Circuit Judge; appeal to High Court Judge.
• Appeal from High Court Master; appeal to High Court Judge.
• Appeal from High Court Judge; appeal to Court of Appeal.

Question 64

What orders can the appeal court make?

Answer 64

The appellant will already have stated the order they wish the appeal court to make when initiating their appeal. Now the appeal court has heard the appeal, what orders might it actually make?

In relation to an appeal, the appeal court has all the powers of the lower court, so it could replace the lower court’s judgment with its own judgment (CPR 52.20(1)). Alternatively, the appeal court might take a different approach.

Specifically (CPR 52.20(2)), the appeal court has power to:

• affirm, set aside or vary any order or judgment made or given by the lower court;
• refer any claim or issue for determination by the lower court;
• order a new trial or hearing;
• make orders for the payment of interest;
• make a costs order.

The appeal court may instead, of course, dismiss the appeal.