appeals and enforcement Flashcards
why appeals?
Sometimes decisions are wrongly made or judges are bound by precedent
BUT STRICT RULES: because it is in the public’s interest to have final and binding decisions (open-ended appeals system would undermine this by encouraging unsuccessful litigants to have another go)
when is appeal allowed?
lower court’s decision was
- wrong
- unjust
- serious procedural or other irregularity
what is an appeal?
ONLY A REVIEW (not a new hearing/re-hearing)
- manage client expectation
- but there is a re-hearing if PD makes provision for that and if it is in interests of justice
will the court interfere with lower court’s discretion?
NO - RELUCTANT
Only interfere with lower court’s judge’s exercise of discretion if based on:
A misunderstanding of:
- law (error of law)
- evidence, or
- facts before him
fresh evidence allowed in appeal?
NO unless ordered by appeal court
- any decision about fresh evidence must be made in light of OO
Ladd v Marshall
fresh evidence will not be allowed unless:
- could not have been obtained by reasonable diligence for use in lower court
- has important influence on results
- apparently credible
structure of appeals
- you need permission to appeal
- you have 21 days from original decision unless appeal is to SC (but court can order differently)
NB. judgements/orders take effect from the date they were given/made or later date if court specifies (delay in drawing up judgement will not delay time running for purpose of appeal)
WHO HEARS APPEAL - general
next level of judge in court hierarchy
court hierarchy for appeal
- CC District Judge
- County Court Circuit Judge (skip this stage if CC district judge dealt with non-insolvency proceedings brought pursuant to CA 06)
- HC master
- HC judge
- CA
(CAN TRANSFER DIRECTLY TO CA IF:
- appeal raises important point of principle or practice
- there is some other compelling reason for CA to hear it)
permission to appeal?
general: required for all appeals
EXCEPTIONS:
- CPR 52.3(1) (if fall into these, may appeal as of right)
HOW TO APPLY FOR PERMISSION
- ORALLY at lower court at time of decision (judge familiar, no add cost or harm if fails, but hard to work out quickly reason for appeal)
- IN APPELLANT’S NOTICE to be considered by appeal court within time limit in CPR 52.12 (done if oral application fails or no oral app made)
APPELLANT’S NOTICE (CPR 52.3(2)b, (3)
- PAPER APP filed and served
- other docs lodged with it
- usually considered on basis of papers
- served within necessary time period
- contains grounds for appeal
IF APPEAL COURT CA - default position: decide based on papers unless judge considers matter should be dealt with orally
- judge can summon oral hearing
- if cannot ‘fairly determine’ app on paper
- oral hearing listed within 14 days
IF APPEAL IS CC OR HC
- if refuse on paper, appellant can request reconsider at oral hearing
- do it within 7 days of service of notice refusing permission
- if refuse at oral hearing, no appeal possible
TEST FOR GRANTING PERMISSION TO APPEAL
PERMISSION ONLY GRANTED IF COURT CONSIDERS (CPR 52.6):
Appeal would have a real prospect of success
There is some other compelling reason why the appeal should be heard
(Similar to test for summary judgement - swain v hillman, Lord Woolf said ‘real prospect of sucess’ means ‘realistic rather than fanciful’)
Respondent’s notice
- file and served if R wants to seek permission to appeal from appeal court
or
- wishes to ask appeal court to uphold order of lower court for reasons different/additional to those given by lower court
- request permission
- appeal must satisfy same test
3 types of respondent
- wants judgement to be upheld by reasons given (no need to serve RN)
- wants judgemnet upheld for diff/additional reasons (serve RN stating diff/add reason)
- wants to appeal to vary order of lower court (cross-appeal) - must serve RN setting out grounds
time limit for respondent’s notice
as may be directed by lower court
if no direction
- 14 days after date laid down by CPR 52.13(5) which is usually date R is aware appeal is going ahead
EFFECT OF AN APPEAL ON THE JUDGEMENT OF THE LOWER COURT
DOES NOT stay order of lower court
- successful litigant can still enforce their judgement
- appeal operates as a stay if appeal court or lower court orders (not usually) or appeal is from Immigration and Asylum Chamber of the UT
COMPOSITION OF THE COURT - CC
County court circuit judge (usually alone)
COMPOSITION OF THE COURT - HC
High court judge
usually alone
COMPOSITION OF THE COURT - CA
2 lord justices (interim appeal)
3 lord justices (final appeal)
if 2 judge court equally divided, either party can apply for rehearing before 3 judge court
COMPOSITION OF THE COURT - SC
5 MEMBER COURT
Powers of an Appeal Court (CPR 52.20(1))
cpr 52.20(2)
- Affirm, set aside, or vary any order or judgement made/given by lower court
- Refer any claim/issue for determination by lower court
- Order new trial/hearing
- Make orders for payment of interest
- Make costs order
- Dismiss the appeal
2ND APPEALS (SUBSEQUENT APPEALS AGAINST DECISION OF APPEAL COURT)
appeal to SC (from CA)
- posssible to go from HC to SC but very rare (e.g. brexit)
appeal to ECtHR (if alleging breach of ECHR)
- not further court of appeal
- must have exhausted all domestic remedies
Judgement creditor
person who wants money (winning claimant)
Judgement debtor
person who owes the money (losing defendant)
enforcement?
JC must take steps to enforce judgement using a method of enforcement
NB. debt must be due before enforcement proceedings can start (i.e. time for payment specified in judgement/cPR 40.11 has elapsed)
INVESTIGATING THE DEBTOR’S MEANS
- comp search
- official copies from LR
- relevant registers
- enquiry agent
- research (e.g. industry contacts)
ORDER TO OBTAIN INFORMATION FROM JUDGEMENT DEBTOR (CPR 71) - disadvantage
puts D on notice so he might put assets abroad
ORDER TO OBTAIN INFORMATION FROM JUDGEMENT DEBTOR (CPR 71) - what does it do?
CPR 71.2(1) JC may apply for order requiring:
• JD, or (If JD is a company/corporation) an officer of that body
- To attend court to provide information about JD’s means
- OR any matter about which information is needed to enforce judgement or order
JD must then (CPR 71.2(6)):
- attend court
- produce docs
- answer Qs on oath
- standard Qs in questionnaire used for these hearings
ORDER TO OBTAIN INFORMATION FROM JUDGEMENT DEBTOR (CPR 71) - how is it done?
- can be without notice
- must contain penal notice
- order to attend court must be served personally on person ordered to attend court not less than 14 days before the haering
Taking control of goods - when is it used?
If JD has goods which can be taken and sold off (moveable assets)
TCOG - what does it do?
Allows enforcement officer (“EO”) to:
• Seize JD’s goods
• Sell JD’s goods to use the proceeds of sale to satisfy judgement debt and expenses
Exempt goods (cannot be seized & sold) incl.: • Tools of JD’s trade (to aggregate value of £1350) • Basic domestic items (e.g. clothing, bedding, furniture, and essential household items)
These are exempt and protected against seizure so judgement debtor can continue to live and work (albeit to a less comfortable standard than he might previously have enjoyed)
TCOG - how is it done?
JC can apply:
• As soon as JUDGEMNET has been obtained, and
• JD has failed to pay by the time payment is due
commence proceedings of TCG by requesting issue of relevant court doc + pay applicable fee
- HC = writ of control
- CC = warrant of control
both addressed to EO (entitles EO to seize and sell JD’s goods and raise funds to satisfy debt)
HC OR CC - TCOG
CC- up to £600 debt
HC or CC - £600-£5000
HC - more than £5000
writ/warrant of control
HC - writ
CC- warrant
contains relevant details and amount of debts to be recovered
• Fixed amount for costs of TCG will be added (incl. court fee)
• EO will be able to take his own charges out of the proceeds of the goods sold and seized
• Advisable for HC to supply EO with information about JD’s goods and whereabouts to aid recover of items as swiftly as possible
steps for TCG after writ/warrnt is delievred to EO
ONE – giving notice to JD of enforcement
- at least 7 clear days
- EO not required to specify when he will take goods (he has 12m from date of giving notice)
TWO - entering premises and securing the goods
- can use reasonable force to enter (not against people)
- restrictions: between 6am-9pm, not if child/vulnerable person is only person present
- EO may remove goods from premises ready for sale after entry
THREE - notice after entry including inventory of goods taken
- notice contains EO details, address of prop entered, info about goods taken
FOUR - SALE OF GOODS
- best price reasonably obtained
- EO takes off his fees and costs of TCG (incl. court fee)
- sum paid to JC out of proceeds
- surplus to JD
Third Party Debt Orders (CPR 72, PD) - WHEN USED?
When there is a debt due or accruing due to a JD by a 3P within the jurisdiction
(E.g. money in JD’s bank account or trade debts owing to JD)
NB. if bank account in overdraft, NO TPDO because person would be owing the bank rather than bank owing the person
tpdo - what does it do?
If the court makes an order (CPR 72.5(1)) requiring 3P to pay JC some or all of a debt owing to a JD by a 3P in satisfaction of the judgement debt and JC’s costs of application (CPR 72.2(1)):
- Intercepts money owed to the debtor by a 3P before it reaches debtor’s hands
- Requires 3P to pay money to JC instead of JD
(JD’s debtor pays JC directly instead)
TPDO - how is it done
JC makes app
CPR 72.4:
• ONE – interim order made without notice to judgement debtor
• TWO – interim order served on 3P first (prevents 3P making payment to JD until further order)
- Usually this will be personally served on 3P
- Served formally at registered office and usually at JD’s local branch too
THREE – interim order served on JD
FOUR – on notice hearing (where JD, and 3P if it wishes, will be heard)
FIVE – court will decide whether to make a final order requiring 3P to pay debt to JC directly or to discharge the interim order
CHARGING ORDERS ON LAND OR CERTAIN SECURITIES (CPR 73, PD) - when used?
When there is real property (but ensure JC knows this will not result in payment of judgement debt unless Order for Sale is subsequently sought and obtained)
not useful if:
- jointly owned (Affects other owners, court won’t want to grant)
- already a charge on land (no equity left)
- if tenants
Charing order - what does it do?
A form of charge taken over land or other specified assets which secures judgement debt
- It does not produce any money
- Once Charging Order is made final – subsequent application needs to be made for Order for Sale before any funds can be realised
charging order - how is it done?
2 stage procedure like TPDO:
• ONE – interim order
- Without notice
- Obtain information and use Official Copies
- Interim order is then served on JD and others with an interest
TWO – final order
- JD raises objections in on notice hearing
- Final notice is granted (or not)
ATTACHMENT OF EARNINGS (CCR Order 27 ‘CCR O.27’) - basic background
‘garnishee order’ - only at CC (if JC wants to use it, judgement must be transferred to CC)
- simple and money paid but takes time and there are administrative costs
AOE - when used?
If debtor does not have substantial profits BUT does earn a salary from employment
(Intercepting money at source)
AOE - what does it do?
JD’s salary will have deductions made from it by JD’s employers
Those deductions will be paid to JC
AOE - how is it done?
- jc files app (certifying amount outstanding) in standard form and pays fee
- app and form of reply served on JD
- JD completes and returns questionnaire to court
- court may make an order attaching a proportion of JD’s oearnings
- order served on JD and JD employe5
- employer makes appropriate deductions from JD’s earnings and pays it to court for onward transmission to JC
- if JD changes jobs, old employer must notify court
JD may delay by not returning questionnaire - court must issue order served personally on JD compelling JD to respond (this can lead to JD being imprisoned!)
PROCEEDINGS FOR INSOLVENCY (NUCLEAR OPTION) - pros and cons
individual = bankruptcy company = winding up
pros:
- effective threat
- very effective method/incentive of getting payment if there is money available
- clients like this (psychological satisfaction)
cons:
- client will not be preferred he is an unsecured creditor (if JD has other debts, client will be in the end of the queue sharing assets pari passu)
insolvency - how?
ONE – JC issues petition for bankruptcy or wind up (if judgement debt more than £5000 for individuals, or £750 for companies)
TWO – petition served on JD
THREE – court fixes time for hearing of petition
- JD notified of date to attend court hearing to decide whether a Bankruptcy Order or Winding Up Order should be made against them
- If JD do not deal with the matter, and oppose petition, they will likely be made bankrupt/wound up
NB. Prior to petition being issued – statutory demand might be served on debtor
- Precursor to insolvency proceedings being commenced
- If debt remains unpaid for 21 days after service of demand, the debtor is at risk of the court presuming that he/it is unable to pay its debts and is therefore insolvent
- This will make bankruptcy/winding up petition much more difficult for JD to resist
- Serving statutory demand is very simple and low cost
RECIPROCAL ENFORCEMENT OF JUDGEMENTS BETWEEN COUNTRIES
UK is signatory to a number of conventions/treaties that facilitate enforcement of judgements abroad (generally reciprocal)
- based on system of registration (judgements of 1 country reg in another)
- treated as if judgement of that country
- lots of regimes
- work out foreign jurisdiction and see what regime applies and follow procedure
IF NO RELEVANT REGIME
- common law
- much more difficult to enforce
- e.g. USA/HK
Enforcing judgement abroad under CL
governed by CL of country seeking to enforce judgement in
enforcing foreign judgement in E&W under common law
obtain a judgement from English or Welsh court
- Usually done by treating foreign judgement as a debt
- Issue proceedings for non-payment of that debt
- Apply for summary judgement under CPR 24
- ONLY done if judgment is a final one and no appeal in foreign court
