Chapter 13: Trial, Enforcement & Appeals

Question 1

1 Preparation for trial

Answer 1

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:

Question 2

1 Preparation for trial

Answer 2

• 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 3

1.1 Pre-trial checklist

Answer 3

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.
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).

Question 4

1.1 Pre-trial checklist

Answer 4

The pre-trial checklist requires the parties:
(a) 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).
(b) To specify any further directions required to prepare the case for trial and enclose an application form and draft order for those directions.

Question 5

1.1 Pre-trial checklist

Answer 5

(c) 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.
(d) To give details of experts, whether they have met to discuss their reports, and whether their reports have been agreed.
(e) To give details of dates within the trial period when experts will not be available.

Question 6

1.1 Pre-trial checklist

Answer 6

(f) To give details of witnesses, their availability and any special facilities they require.
(g) To give details of who will present the case at trial and their availability within the trial period.
(h) To estimate the trial length, including cross-examination and closing arguments, and to attach a proposed timetable for trial (preferably agreed between the parties).

Question 7

1.1 Pre-trial checklist

Answer 7

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

1.2 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.

Question 9

1.2 Listing directions and/or hearing

Answer 9

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 pre-trial review is to check that the parties have complied with all previous orders and directions, and to give directions for conduct of the trial.

Question 10

1.3 Preparation for trial

1.3.1 Trial bundle

Answer 10

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).

Question 11

1.3.1 Trial bundle

Answer 11

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.

Question 12

1.3.1 Trial bundle

Answer 12

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

Question 13

1.3.1 Trial bundle

Answer 13

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

Question 14

1.3.1 Trial bundle

Answer 14

(a) claim form and all statements of case;
(b) case summary and/or chronology where appropriate;
(c) requests for further information and responses to these;
(d) all witness statements to be relied on as evidence;
(e) any witness summaries;
(f) any hearsay notices;
(g) any notices of intention to rely on evidence which is not:
(i) contained in a witness statement, affidavit or expert’s report
(ii) being given orally at trial
(iii) hearsay evidence;

Question 15

1.3.1 Trial bundle

Answer 15

(h) any medical reports with responses to them;
(i) any experts’ reports, with responses to them;
(j) any order giving directions for the conduct of the trial; and
(k) any other necessary documents.

Question 16

1.3.2 Reading list

Answer 16

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

Question 17

1.3.3 Skeleton argument

Answer 17

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

Question 18

1.3.4 Authorities

Answer 18

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.

Question 19

1.3.5 Case summary

Answer 19

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

Question 20

1.3.6 Settlement

Answer 20

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 21

1.3.7 Notices to admit facts / documents

Answer 21

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.

Question 22

1.3.7 Notices to admit facts / documents

Answer 22

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.

Question 23

1.3.7 Notices to admit facts / documents

Answer 23

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 24

1.3.8 Brief to counsel

Answer 24

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.

Question 25

1.3.8 Brief to counsel fee

Answer 25

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)

Question 26

1.3.8 Brief to counsel

Answer 26

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 27

1.3.9 Secure attendance of witnesses and experts

Answer 27

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 28

1.4 Summary

Answer 28

• A pre-trial checklist will need to be completed (in cases allocated to the fast track and multitrack), allowing the court to check directions have complied with and to take any necessary steps.
• A pre-trial review hearing may also take place.

Question 29

1.4 Summary

Answer 29

• The claimant prepares the trial bundle – a paginated bundle of all the key documents. Identical copies are provided for each party, the court and a further set for the use of
  witnesses.
• It may also be necessary for the parties to prepare a reading list, skeleton arguments, list of authorities, case summaries, notices to admit facts, brief to counsel and witness summons’.

Question 30

2 Trial
2.1 Court room etiquette

Answer 30

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.

Question 31

2.1 Court room etiquette

Answer 31

• See the chapter 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.

Question 32

Courtroom Etiquette

Answer 32

• 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

Question 33

2.1 Court room etiquette

Answer 33

• 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.
  You are likely to receive further details about these matters as part of any advocacy training you do.

Question 34

2.2 Trial

Answer 34

The trial is the hearing where the substantive issues between the parties are decided by the court,
having heard all the witnesses give their evidence. The order made at trial will be called a judgment or final order. The following is a possible order of events, subject to time limits and other directions made by the court:

Question 35

2.2.1 Claimant’s opening speech

Answer 35

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 36

2.2.2 Claimant’s case

Answer 36

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.

Question 37

2.2.2 Claimant’s case

Answer 37

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.

Question 38

2.2.2 Claimant’s case

Answer 38

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

Question 39

2.2.3 Defendant’s case

Answer 39

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 40

2.2.4 Closing speeches

Answer 40

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 41

2.3 Orders
2.3.1 Judgments and final orders

Answer 41

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

Question 42

Example: Judgments and final orders

Answer 42

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

Question 43

2.3.1 Judgments and final orders

Answer 43

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 44

2.3.2 Other types of order

Answer 44

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

Question 45

Example: Other types of order - interim orders

Answer 45

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

Question 46

Example: Other types of order - interim orders

Answer 46

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.

Question 47

Example: Other types of order - interim orders

Answer 47

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 48

2.3.3 Judgment after trial / final hearing

Answer 48

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.

Question 49

2.3.3 Judgment after trial / final hearing

Answer 49

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.

Question 50

2.3.3 Judgment after trial / final hearing

Answer 50

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.

Question 51

Priority of a legal representative

Answer 51

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 52

2.3.4 Disposal hearing

Answer 52

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 53

2.3.5 Drawing up and service of judgments/orders

Answer 53

‘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

Question 54

2.3.5 Drawing up and service of judgments/orders

Answer 54

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.

Question 55

2.3.5 Drawing up and service of judgments/orders

Answer 55

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.

Question 56

2.3.5 Drawing up and service of judgments/orders

Answer 56

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 57

2.3.6 When a judgment / order takes effect

Answer 57

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).

Question 58

2.3.6 When a judgment / order takes effect

Answer 58

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.

Question 59

2.3.6 When a judgment / order takes effect

Answer 59

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 60

2.4 Debt respite scheme

Answer 60

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 breathing space via the insolvency service, which then notifies the debtor’s creditors.

Question 61

2.4 Debt respite scheme

Answer 61

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.

Question 62

2.4 Debt respite scheme

Answer 62

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 63

2.5 Costs

Answer 63

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)).

Question 64

2.5 Costs

Answer 64

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

Question 65

2.6 Summary

Answer 65

• There are important principles of court room etiquette that apply to trial, but also to any other court hearing.
• The evidence at trial is heard in a particular order.
• Judgments and orders can be made after a trial or final hearing (or in accordance with a provision in the CPR such as default judgment or summary judgment, after settlement by consent and at an interim stage before trial).

Question 66

2.6 Summary

Answer 66

• Judgments / orders take effect from the date they were given or made.
• Parties generally have a time limit of 14 days in which to comply with judgments / orders in relation to payment of amounts of money.

Question 67

3 Enforcement - Introduction

Answer 67

The ultimate objective throughout litigation is to succeed and obtain a judgment against the other party. However, judgment is not necessarily the end of the matter, as the losing party still needs to fulfil whatever steps are required by the judgment. This will often mean that they need to pay damages to the successful party. If they fail to do so voluntarily, enforcement action will need to
be taken to make this happen

Question 68

3 Enforcement - Introduction

Answer 68

Enforcement proceedings are the steps taken post judgment by the successful party in order to
obtain payment from the unsuccessful party, who can now be described as the judgment debtor.
In this chapter we will cover the possible methods that can be used to enforce judgments and how to find information out about the debtor and their assets in order to select the most appropriate and effective method or methods to use

Question 69

3.1 Introduction to enforcement - useful terminology

Answer 69

Judgment debtor: Owes the money (eg the losing defendant) (CPR 70.1(2)(b)).
Judgment creditor: Wants the money (eg the winning claimant) (CPR 70.1(2)(a)).

Question 70

Does not automatically take enforcement action

Answer 70

The court does not automatically take enforcement action against judgment debtors. The judgment creditor must take steps to enforce the judgment using one or a combination of the
different methods of enforcement available.

Question 71

3.1 Introduction to enforcement - useful terminology

Answer 71

The judgment creditor cannot recover any more than is due to it under the judgment. Generally,
the debt must be due (ie the time for payment as specified in the judgment itself or in the rules (CPR 40.11) must have elapsed without payment having been made) before enforcement proceedings can start.

Question 72

3.2 Introduction to enforcement - investigating the opponent’s means

Answer 72

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.

Question 73

3.2 Introduction to enforcement - investigating the opponent’s means

Answer 73

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.

Question 74

3.2 Introduction to enforcement - investigating the opponent’s means

Answer 74

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 – explained on the next three pages). This requires the debtor to attend court and give information directly about their
assets.

Question 75

3.2 Introduction to enforcement - investigating the opponent’s means

Answer 75

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 76

3.3 Introduction to enforcement - orders to obtain information from the judgment debtor (procedure)

Answer 76

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

Question 77

A judgment creditor may apply for an order requiring:

Answer 77

• 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 78

3.3 Introduction to enforcement - orders to obtain information from th judgment debtor (procedure)

Answer 78

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)).

Question 79

3.3 Introduction to enforcement - orders to obtain information from the judgment debtor (procedure)

Answer 79

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.

Question 80

3.3 Introduction to enforcement - orders to obtain information from the judgment debtor (procedure)

Answer 80

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 81

3.4 Introduction to enforcement methods

Answer 81

The main methods of enforcement of money judgments (70 PD 1.1) include:
* Writs / warrants of control (see Taking Control of Goods below);
* Third party debt orders;
* Charging orders; and
* Attachment of earnings orders.

Question 82

3.4 Introduction to enforcement methods

Answer 82

There are other methods that exist (for example, the methods used to enforce a non-money judgment will obviously be different) but in this chapter we will look at the most commonly used of the methods above and some other useful methods such as insolvency / bankruptcy proceedings for enforcing money judgments.

Question 83

3.4 Introduction to enforcement methods

Answer 83

The judgment creditor may use any method of enforcement which is available and may use more
than one method of enforcement at the same time or one after the other (CPR 70.2(2)). Basically, the judgment creditor can keep going until the judgment debt is fully paid up.

Question 84

3.5 Introduction to choosing the correct court for enforcement

Answer 84

Some methods of enforcement are only available in one particular court (ie the County Court or the High Court) so you may need to have the proceedings transferred to a different court for the purposes of enforcement.

Question 85

Example: Introduction to choosing the correct court (i)

Answer 85

Attachment of earnings orders are only available in the County Court. If a claimant had a High Court judgment which it wished to enforce by this method, it would need to apply to transfer the proceedings to the County Court for the purposes of enforcement.

Question 86

Example: Introduction to choosing the correct court (i)

Answer 86

The most common reason for transferring from the County Court to the High Court for enforcement is to use a High Court Enforcement Officer to enforce the judgment by taking control of and eg selling the debtor’s goods.

Question 87

Example: Introduction to choosing the correct court (ii)

Answer 87

Sums of £5,000 or more must be enforced in the High Court so a claimant with a County Court
judgment in excess of this sum would need to apply to transfer to the High Court. Where the sum is less than £600 or arises out of an agreement regulated by the Consumer Credit Act 1974, it must be enforced in the County Court. In between these financial limits, it can be enforced in
either court.

Question 88

4 Enforcement – Investigating the debtor’s means

4.1 Investigations

Answer 88

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

Question 89

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

Answer 89

• 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.

Question 90

4.1 Investigations

Answer 90

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 91

4.1.1 Enquiry agents

Answer 91

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

Question 92

4.1.1 Enquiry agents

Answer 92

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.

Question 93

4.1.2 Company searches

Answer 93

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 94

4.1.3 Registers

Answer 94

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

Question 95

Land Charges Registry

Answer 95

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.

Question 96

Individual Insolvency Register

Answer 96

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

Question 97

Attachment of Earnings Order

Answer 97

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 chapter.

Question 97

The Register of Judgments, Orders and Fines

Answer 97

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).

Question 98

The Register of Judgments, Orders and Fines

Answer 98

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 (s10 of the Register Regulation) includes the debtor’s name, address and the amount of the outstanding debt

Question 99

The Register of Judgments, Orders and Fines

Answer 99

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 100

4.2 The opponent’s features

Answer 100

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.

Question 101

4.2 The opponent’s features

Answer 101

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.

Question 102

4.2 The opponent’s features

Answer 102

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.

Question 103

4.3 Order to obtain information from the judgment debtor

Answer 103

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 can help determine how best to enforce a judgment. This is covered in the section introducing you to enforcement.

Question 104

4.4 Enforcement in other jurisdictions

Answer 104

What happens if the jurisdiction of another country is involved for some reason?

Question 105

4.4 Enforcement in other jurisdictions

Answer 105

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 106

4.4.1 Procedure
Regimes

Answer 106

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.

Question 107

4.4.1 Procedure
Regimes

Answer 107

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.

Question 108

4.4.1 Procedure
Regimes

Answer 108

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.

Question 109

4.4.1 Procedure
Regimes

Answer 109

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 110

Common Law

Answer 110

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.

Question 111

Common Law

Answer 111

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

Question 112

Common Law

Answer 112

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 113

Procedural steps

Answer 113

• The first step therefore is to identify which foreign jurisdiction you are dealing with and which, if any, regime applies.
• You would then follow the relevant procedure according to an applicable regime or the common law as well as the CPR (CPR 74).

Question 114

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

Answer 114

• 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.

Question 115

Procedural steps

Answer 115

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.

Question 116

The evidence must:

Answer 116

• 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 117

4.5 Summary

Answer 117

• It is necessary to investigate the opponent and their means before and during litigation, as well
  as after judgment when enforcement proceedings are being considered, to ensure that any judgment can and will be paid.
• There are various registers and informal investigations that can be undertaken, as well as the formal process requiring the judgment debtor to provide the court with information about their assets (CPR 71).

Question 118

4.5 Summary

Answer 118

• If an order to obtain information is made, it will include a penal notice so that the debtor can be committed (ie imprisoned) or fined if they refuse to attend court or to comply with the investigation.
• If assets against which an English judgment is to be enforced are overseas, it is necessary to
  identify if an applicable regime applies. In the absence of an applicable regime, the common
  law applies. The procedure is based around a system of registration and a certified copy of the judgment will first need to be sought from the courts of England and Wales (CPR 74).

Question 119

5 Enforcement – Methods of enforcement

Answer 119

In this section we will look a little more closely at the most common methods of enforcement that
are used in relation to money judgments in England and Wales:

Question 120

5.1 Taking Control of Goods (‘TCG’)

Answer 120

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.

Question 121

5.1 Taking Control of Goods (‘TCG’)

Answer 121

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.

Question 122

5.1 Taking Control of Goods (‘TCG’)

Answer 122

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 123

5.1.1 TCG - exempt goods

Answer 123

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.

Question 124

5.1.1 TCG - exempt goods

Answer 124

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 125

5.1.2 TCG - which court?

Answer 125

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):

Question 126

TCG - which court?
Up to £600

Answer 126

Must use County Court

Question 127

Between £600 and £5000

Answer 127

Can use either High Court or County Court

Question 128

More than £5000

Answer 128

Must use High Court

Question 129

5.1.3 TCG - how to apply

Answer 129

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.

Question 130

TCG - documents to issue

Answer 130

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.

Question 131

TCG - documents to issue

Answer 131

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 132

5.1.4 TCG - procedure (3 stage process)

Answer 132

After the writ or warrant of control has been delivered to the EO the process of TCG has 3 stages:
(a) Giving notice to the judgment debtor of enforcement
(b) Entering premises and securing the goods
(c) Sale of the goods
We will look at all 3 stages in turn.

Question 133

Stage 1: Giving notice to the judgment debtor of enforcement

Answer 133

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.

Question 134

Stage 2: Entering premises and securing the goods

Answer 134

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.

Question 135

Stage 2: Entering premises and securing the goods

Answer 135

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.

Question 136

Stage 2: Entering premises and securing the goods

Answer 136

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’.

Question 137

Stage 3: Sale of the goods

Answer 137

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 138

5.2 Third Party Debt Orders

Answer 138

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

Question 139

Example: Third party debt orders

Answer 139

Examples of third party debt orders 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.

Question 140

Example: Third party debt orders

Answer 140

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)).

Question 141

Example: Third party debt orders

Answer 141

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 142

5.2.1 Third party debt orders - procedure

Answer 142

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.

Question 143

5.2.1 Third party debt orders - procedure

Answer 143

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.

Question 144

5.2.1 Third party debt orders - procedure

Answer 144

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 145

5.3 Charging Orders on land or certain securities

Answer 145

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.

Question 146

5.3 Charging Orders on land or certain securities

Answer 146

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.

Question 147

5.3 Charging Orders on land or certain securities

Answer 147

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)

Question 148

5.3 Charging Orders on land or certain securities

Answer 148

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 149

5.4 Attachment of earnings orders

Answer 149

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:

Question 150

5.4.1 Attachment of earnings - procedure

Answer 150

The procedure (CPR 89) can be summarised as follows:
* The judgment creditor applies by filing an application in a standard form, certifying th 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.

Question 151

5.4.1 Attachment of earnings - procedure

Answer 151

• 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.

Question 152

5.4.2 Attachment of earnings - problems that can arise

Answer 152

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

Question 153

5.4.2 Attachment of earnings - problems that can arise

Answer 153

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 154

Summary of methods of enforcement
Moveable assets

Answer 154

TCG. Transfer the judgment to the High Court if necessary.

Question 155

Debts owed by others

Answer 155

Third party debt order

Question 156

Real property

Answer 156

Charge the property, but ensure that the judgment creditor understands that this will not result in the payment of the judgment debt unless an order for sale is subsequently sought and obtained.

Question 157

Earnings

Answer 157

Transfer the judgment down to the County Court if necessary and then apply for an attachment of earnings order.

Question 158

The nature of the debtor’s assets is unclear

Answer 158

Use an order to obtain information from the judgment debtor about its assets. Use an enquiry agent, if it is a reputable firm and budget permits. Do some of the research yourself and / or ask the client to do some.

Question 159

5.5 Insolvency proceedings

Answer 159

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).

Question 160

5.5.1 Insolvency - procedure

Answer 160

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.

Question 161

5.5.1 Insolvency - procedure

Answer 161

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 162

5.6 Statutory demands

Answer 162

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.

Question 163

5.6 Statutory demands

Answer 163

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

Question 164

5.6 Statutory demands

Answer 164

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

Question 165

5.6 Statutory demands

Answer 165

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 166

5.7 Summary

Answer 166

• There are a number of methods of enforcing a money judgment. The method chosen will primarily depend upon the type of assets available against which to enforce the judgment debt.
• Taking control of goods is suitable when the debtor owns assets which can be sold and the proceeds used to pay the debt.
• Third party debt orders enable the judgment creditor to intercept money that is owed to the judgment debtor, such as a credit balance in a bank account, and divert this to the judgment creditor in settlement of the judgment debt.

Question 167

5.7 Summary

Answer 167

• Charging orders are suitable where the asset in question is land, but this only provides security for the judgment debt and not payment. For payment, an order for sale will be necessary after the charging order has been obtained.
• Attachment of earnings orders enable the judgment debtor’s salary to be intercepted and diverted to the judgment creditor in settlement of the judgment debt.
• Insolvency proceedings are another effective way to obtain payment. The threat of bankruptcy of an individual or winding up of a company can often be enough to prompt
  payment, should the judgment debtor have assets available to pay.

Question 168

Appeals

Answer 168

Sometimes court decisions are wrongly made. The system of appeals is designed to ensure that these are corrected. On the other hand, there is a strong public interest in regarding judicial decisions as final and binding and an open-ended appeals system would undermine this by encouraging unsuccessful litigants to have another go. There are detailed provisions containing the required procedure, information and other guidance in relation to appeals (CPR 52 / PDs 52A - 52E).

Question 169

Key concepts when considering an appeal include:

Answer 169

• Grounds of appeal (ie whether grounds exist and the likelihood of success of an appeal)
• Permission to appeal (which will nearly always be needed)
• Destination (or route) of an appeal (ie which court / judge will hear the appeal)

Question 170

6 Appeals

Answer 170

There are a number of possible destinations for appeals, depending upon where and how the lower court’s decision was made. When talking about appeals, care should be taken to distinguish between the term ‘appeal court’ (which is the court to which you have the right to appeal in any particular case) and the ‘Court of Appeal’ (which is one of the specific courts which might be the destination of appeal).

Question 171

6 Appeals

Answer 171

This chapter concerns only civil appeals in England and Wales as far as the Court of Appeal. Appeals to the Supreme Court are mentioned only for context where necessary and are not covered in detail as part of this chapter.

Question 172

6.1 Grounds of appeal

Answer 172

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.

Question 173

6.1 Grounds of appeal

Answer 173

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 174

6.1.1 Grounds of appeal - wrong decisions in the lower court

Answer 174

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 175

Example: Grounds of appeal - wrong decision

Answer 175

Where a lower court’s decision is based on irreconcilable accounts, the credibility of the parties’ testimony is an issue of primary importance. The trial judge has seen and heard the witnesses and therefore the trial judge’s view as to where credibility lies carries great weight, such that it might be inappropriate for the appeal court to interfere.

Question 176

6.1.2 Grounds of appeal - unjust decisions in the lower court

Answer 176

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.

Question 177

Example: Grounds of appeal - unjust decisions in the lower court

Answer 177

Unjust decisions in the lower court could be:
* 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 178

6.2 Permission

Answer 178

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:

Question 179

6.2.1 Permission - how will the application be dealt with?
Where the appeal court is the Court of Appeal

Answer 179

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)

Question 180

Where the appeal court is the Court of Appeal

Answer 180

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.

Question 181

Where the appeal court is the County Court or High Court

Answer 181

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 182

6.2.2 Permission - time limits

Answer 182

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 183

6.2.3 Permission - test for granting permission for first appeals

Answer 183

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 184

6.2.4 Permission - test for granting permission for second appeals

Answer 184

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):

Question 185

6.2.4 Permission - test for granting permission for second appeals

Answer 185

• 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 186

6.2.5 Permission granted – what happens next?

Answer 186

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 187

6.2.5 Permission granted – what happens next?

Answer 187

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 188

Example: Permission granted - what happens next? - stay

Answer 188

Carrying out a lower court’s order to demolish a building would defeat the benefit of a successful appeal. It may therefore serve justice to stay the order to demolish pending the appeal being heard.

Question 189

6.3 Routes of appeals

Appeal from / Appeal to

Answer 189

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):

Question 190

County Court District Judge

Answer 190

County Court Circuit Judge

Question 191

County Court District Judge dealing with non-insolvency proceedings brought pursuant to the Companies Acts

Answer 191

High Court

Question 192

County Court Circuit Judge

Answer 192

High Court Judge

Question 193

High Court Master

Answer 193

High Court Judge

Question 194

High Court Judge

Answer 194

Court of Appeal

Question 195

6.4 What orders can the appeal court make?

Answer 195

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.

Question 196

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

Answer 196

(a) affirm, set aside or vary any order or judgment made or given by the lower court;
(b) refer any claim or issue for determination by the lower court;
(c) order a new trial or hearing;
(d) make orders for the payment of interest;
(e) make a costs order.
The appeal court may instead, of course, dismiss the appeal.

Question 197

6.5 Summary

Answer 197

• The possible grounds of appeal are that the lower court’s decision was wrong or unjust because of a serious procedural or other irregularity.
• Appeals generally take the form of a review of the lower court’s decision rather than a rehearing.
• The general rule is that permission from either the lower court or appeal court will be required before an appeal can proceed

Question 198

6.5 Summary

Answer 198

• Permission from an appeal court should generally be sought within 21 days of the lower court’s decision.
• Permission will only be granted where the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

Question 199

6.5 Summary

Answer 199

• Appeal lies to the next level of judge in the court hierarchy.
• Appeals can be heard within the same court (eg County Court District Judge decision will be heard on appeal by County Court Circuit Judge), or the appeal court could be different (eg County Court to High Court or High Court to Court of Appeal).
• The appeal court has a wide range of orders that it can make, including substituting its own judgment for that of the lower court’s and ordering a new trial or hearing