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Civil Litigation > Appeals And Enforcement > Flashcards

Appeals And Enforcement Flashcards

1
Q

What is a consent order based on a contract?

A

A consent order that serves as evidence of the contract between the parties and is rarely interfered with by the court.

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2
Q

What is a consent order NOT based on a contract?

A

This order is simply the parties agreeing on terms of settlement in the claim and may be altered or varied by the court.

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3
Q

What is a Tomlin Order?

A

A Tomlin Order consists of two parts: a public part and a confidential part that contains the details of the agreement reached between the parties.

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4
Q

When is a Tomlin Order generally used?

A

When parties wish to keep key settlement terms confidential or when agreed settlement terms exceed what the court could generally order.

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5
Q

What is required for consent orders and Tomlin orders?

A

Both need the court’s approval; once intent is agreed, parties must apply to the court to have the order made.

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6
Q

What should parties do if they resolve their dispute without issuing proceedings?

A

They will record their agreement in a settlement agreement, which acts as a form of contract.

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7
Q

What is the purpose of the pre-trial checklist?

A

To provide the court with an opportunity to check compliance with case management directions and fix a trial date.

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8
Q

What happens after the pre-trial checklist is filed?

A

The court will give any further directions needed to get the matter listed for trial, which may include a pre-trial review.

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9
Q

What is the purpose of a trial bundle?

A

To ensure all relevant material is before the court at trial for a smooth and expeditious process.

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10
Q

Who is responsible for filing the trial bundle?

A

The claimant must file the trial bundle with the court no more than seven days and no less than three days before the trial begins.

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11
Q

What must be included in High Court cases regarding reading lists?

A

A reading list must be lodged with the trial bundles, estimating the reading time required by the judge.

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12
Q

What is a skeleton argument?

A

A concise summary of submissions to be made, usually prepared by counsel for High Court trials.

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13
Q

What is the purpose of a notice to admit facts/documents?

A

To formally ask the other party to admit a particular fact that is in issue, which if not admitted, will be called at trial.

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14
Q

What happens during the claimant’s opening speech?

A

The claimant describes the nature of the claim and identifies the issues to be tried.

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15
Q

What is the process for calling evidence in a trial?

A

Evidence is called on behalf of the claimant, followed by cross-examination by the defendant’s counsel.

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16
Q

What is a judgment or final order?

A

An order that ends the claim, which may include provisions for costs.

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17
Q

What is an interim order?

A

An order made at any time in a claim up to trial that does not finally conclude the matter.

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18
Q

When is a judgment effective?

A

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

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19
Q

What is the time limit for complying with a judgment or order for payment?

A

Parties have 14 days to comply with a judgment or order for the payment of an amount of money, unless specified otherwise.

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20
Q

What is the rate of interest on judgment debts?

A

The rate of interest on judgment debts is set at 8% per annum under section 17 Judgments Act 1838 (as amended).

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21
Q

What is the time limit for parties to comply with a judgment or order for payment?

A

Parties have a time limit of 14 days to comply with a judgment or order for payment, unless otherwise specified by the court.

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22
Q

What discretion does the court have regarding enforcement of a judgment?

A

The court has discretion to allow a stay of execution of the judgment or order on application by the party against whom the judgment has been made.

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23
Q

What is the Debt Respite Scheme?

A

The Debt Respite Scheme provides temporary protection from a judgment/order for some judgment debtors, allowing them to request a ‘breathing space’ of 60 days.

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24
Q

What must a judgment creditor do during the breathing space period?

A

During the breathing space period, the judgment creditor must stop all enforcement action and not contact the debtor requesting payment.

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25
Q

What types of judgments are excluded from the Debt Respite Scheme?

A

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

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26
Q

What is the general rule regarding costs in court?

A

The general rule is that ‘costs follow the event’, meaning the unsuccessful party pays the costs of the successful party.

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27
Q

Can the court deviate from the general rule on costs?

A

Yes, the court has complete discretion and can take other factors into account to make a different costs order.

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28
Q

What is the purpose of enforcement action?

A

Enforcement action is needed when the loser fails to voluntarily comply with the judgment.

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29
Q

What does ‘investigation opponents’ mean?

A

It refers to considering whether the defendant is able to pay any judgment given, both before and during the action.

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30
Q

What is an oral examination of a debtor?

A

A judgment creditor may apply for an order requiring a judgment debtor to attend court to provide information about their means.

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31
Q

What is required for the order to attend court?

A

The order must contain a ‘penal notice’ stating consequences for non-compliance.

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32
Q

What happens if the judgment debtor fails to attend the hearing?

A

If the judgment debtor fails to attend or refuses to comply, the matter will be referred to a judge who may order committal.

33
Q

What are the main methods of enforcement of money judgments?

A

The main methods include writs/warrants of control, third party debt orders, charging orders, and attachment of earnings orders.

34
Q

Which court is required for certain enforcement methods?

A

Some methods of enforcement are only available in either the County Court or the High Court.

35
Q

What is an example of court transfer for enforcement?

A

If a claimant has a High Court judgment and wishes to enforce it via attachment of earnings, they must transfer to the County Court.

36
Q

What are the financial limits for enforcing judgments in different courts?

A

Sums of £5,000 or more must be enforced in the High Court; sums less than £600 must be enforced in the County Court.

37
Q

What does investigating debtors involve?

A

Investigating debtors involves gathering information from various sources such as clients, company searches, official copies from the Land Registry, relevant registers, or employing an enquiry agent.

38
Q

What is the role of enquiry agents?

A

Enquiry agents are private investigators who procure extensive information on individuals or companies upon request, but they can be expensive.

39
Q

What information can be accessed through company searches?

A

Company searches provide access to information filed at Companies House, including annual accounts, general solvency, assets, and whether those assets are charged.

40
Q

What is the Land Charges Registry?

A

The Land Charges Registry records restrictions or prohibitions on property use and any charges against it, useful for determining equity in a debtor’s property.

41
Q

What does the Individual Insolvency Register list?

A

The Individual Insolvency Register lists individuals who have been made bankrupt or have Debt Relief Orders or Individual Voluntary Arrangements (IVAs) in place.

42
Q

What is the purpose of the Attachment of Earnings Order Index?

A

The Attachment of Earnings Order Index shows debtors against whom attachment of earnings orders are in force.

43
Q

What does the Register of Judgments, Orders and Fines contain?

A

This register contains all County Court judgments from April 1990 onwards, including debtor’s name, address, and outstanding debt amount.

44
Q

What should be considered about the opponent in litigation?

A

Considerations include whether the opponent is legally aided, the potential dissipation of assets, and if the opponent has insurance that may facilitate payment.

45
Q

What happens if the opponent is legally aided?

A

If the opponent is legally aided, your client may not recover costs or damages, affecting litigation strategy.

46
Q

What is the significance of dissipating assets?

A

Dissipation of assets may prevent the judgment from being paid, necessitating measures like obtaining a freezing injunction.

47
Q

What is the UK’s position on enforcing judgments abroad?

A

The UK is a signatory to conventions that facilitate reciprocal enforcement of judgments, allowing judgments from England and Wales to be enforced in foreign jurisdictions.

48
Q

What happens to reciprocal agreements after Brexit?

A

Many reciprocal agreements with EU member states ceased to apply for judgments instituted after 31 December 2020, except for the Hague Convention on Choice of Court Agreements.

49
Q

What governs enforcement where no relevant regime applies?

A

Enforcement is governed by common law, which can make the process more difficult.

50
Q

What are the procedural steps for enforcing a judgment abroad?

A

Identify the foreign jurisdiction, determine applicable regimes, and follow the relevant procedures according to the applicable regime or common law.

51
Q

What is required to enforce a High Court or County Court judgment in a foreign country?

A

The judgment creditor must apply for a certified copy of the judgment and provide written evidence supporting the application.

52
Q

What are exempt goods when taking control of goods?

A

Exempt goods include tools of the debtor’s trade (up to £1,350) and basic domestic items like clothing and essential household items.

53
Q

What is the procedure for Third Party Debt Orders?

A

The procedure requires the third party to disclose information to the court and judgment creditor, starting with an interim order made without notice.

54
Q

What is involved in obtaining a charging order?

A

To obtain a charging order, the judgment creditor needs to secure an interim charging order followed by a final charging order.

55
Q

What is the process for insolvency proceedings?

A

The petition is issued and served on the debtor, followed by a court hearing to decide on a bankruptcy or winding-up order.

56
Q

What is a statutory demand?

A

A statutory demand is a precursor to insolvency proceedings, and if unpaid for 21 days, it may lead to the presumption of the debtor’s insolvency.

57
Q

What are key concepts in considering an appeal?

A

Key concepts include grounds of appeal, permission to appeal, and the destination of the appeal.

58
Q

What grounds can lead to a successful appeal?

A

An appeal can be successful if the lower court’s decision was wrong or unjust due to serious procedural irregularities.

59
Q

What is the normal practice for appeals?

A

Appeals typically involve a review of the lower court’s decision based on existing evidence, not a re-hearing.

60
Q

What must be proven for an unjust decision appeal?

A

The irregularity must be serious and must have caused the lower court’s decision to be unjust.

61
Q

What are examples of irregularities that might occur in a court proceeding?

A

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.

62
Q

How are applications for permission dealt with in the Court of Appeal since 2016?

A

Applications for permission will be determined on the papers alone, unless the judge considers that the matter should be dealt with orally.

63
Q

What is the duty of judges regarding oral hearings for permission applications?

A

Judges have a duty to direct that a hearing takes place if they cannot ‘fairly determine’ the application on the papers.

64
Q

What is the time frame for listing an oral hearing if directed?

A

Any oral hearing will be listed within 14 days, unless the circumstances are exceptional.

65
Q

What can an appellant do if the County Court or High Court refuses a paper application for permission?

A

The appellant may normally request that the decision be reconsidered at an oral hearing within 7 days after service of the notice refusing permission.

66
Q

What happens if permission is refused at the oral hearing?

A

No appeal against that decision is possible.

67
Q

What is the general rule for making an appeal?

A

An appeal must be made within 21 days of the date of the lower court’s decision using Form N161 - the ‘Appellant’s notice’.

68
Q

What is the first appeals test for granting permission?

A

Permission will only be granted where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

69
Q

What is the second appeals test for the Court of Appeal?

A

The Court of Appeal will not give permission for a second appeal unless it considers that the appeal would have a real prospect of success and raise an important point of principle or practice.

70
Q

What can an order granting permission to appeal limit?

A

An order may limit the issues to be heard and be made subject to conditions.

71
Q

What is the general rule regarding appeals and stays of execution?

A

An appeal does not operate as a stay of execution on the order of the lower court.

72
Q

What power do the High Court and Court of Appeal have regarding stays?

A

They have the power to order a stay pending the outcome of any appeal process.

73
Q

What can the appeal court do with appeal orders?

A

The appeal court can affirm, set aside or vary any order or judgment made 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, and make a costs order.

74
Q

What are the possible grounds of appeal?

A

The grounds are that the lower court’s decision was wrong or unjust due to a serious procedural or other irregularity.

75
Q

What is the nature of appeals generally?

A

Appeals generally take the form of a review of the lower court’s decision rather than a re-hearing.

76
Q

What is required before an appeal can proceed?

A

Permission from either the lower court or appeal court will be required.

77
Q

What is the hierarchy for appeals?

A

Appeal lies to the next level of judge in the court hierarchy.

78
Q

Can appeals be heard within the same court?

A

Yes, for example, a County Court District Judge decision will be heard on appeal by a County Court Circuit Judge.

79
Q

What is one of the powers of the appeal court?

A

The appeal court can substitute its own judgment for that of the lower court’s and order a new trial or hearing.

Civil Litigation (9 decks)

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