Chapter 13: Trial, Enforcement & Appeals Flashcards

Question

1.3.8 Brief to counsel fee

Answer 1

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)

Answer 2

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’.

Answer 3

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.

Answer 4

* 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.

Answer 5

* 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’.

Answer 6

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.

Answer 7

* 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.

Answer 8

* 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

Answer 9

* 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.

Answer 10

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:

Answer 11

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.

Answer 12

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.

Answer 13

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.

Answer 14

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.

Answer 15

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.

Answer 16

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.

Answer 17

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

Answer 18

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

Answer 19

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)

Answer 20

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

Answer 21

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

Answer 22

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.

Answer 23

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.

Answer 24

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.

Answer 25

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.

Answer 26

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.

Answer 27

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.

Answer 28

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.

Answer 29

‘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

Answer 30

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.

Answer 31

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.

Answer 32

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.

Answer 33

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).

Answer 34

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.

Answer 35

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.

Answer 36

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.

Answer 37

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.

Answer 38

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.

Answer 39

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)).

Answer 40

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

Answer 41

* 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).

Answer 42

* 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.

Answer 43

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

Answer 44

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

Answer 45

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)).

Answer 46

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.

Answer 47

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.

Answer 48

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.

Answer 49

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.

Answer 50

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.

Answer 51

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.

Answer 52

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

Answer 53

* 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’.

Answer 54

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)).

Answer 55

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.

Answer 56

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.

Answer 57

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.

Answer 58

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.

Answer 59

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.

Answer 60

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.

Answer 61

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.

Answer 62

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.

Answer 63

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.

Answer 64

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

Answer 65

* 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.

Answer 66

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.

Answer 67

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

Answer 68

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.

Answer 69

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.

Answer 70

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

Answer 71

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.

Answer 72

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

Answer 73

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.

Answer 74

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).

Answer 75

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

Answer 76

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.

Answer 77

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.

Answer 78

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.

Answer 79

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.

Answer 80

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.

Answer 81

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

Answer 82

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.

Answer 83

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.

Answer 84

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.

Answer 85

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.

Answer 86

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.

Answer 87

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.

Answer 88

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.

Answer 89

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.

Answer 90

* 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).

Answer 91

* 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.

Answer 92

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.

Answer 93

* 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.

Answer 94

* 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).

Answer 95

* 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).

Answer 96

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:

Answer 97

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.

Answer 98

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.

Answer 99

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.

Answer 100

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.

Answer 101

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).

Answer 102

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):

Answer 103

Must use County Court

Answer 104

Can use either High Court or County Court

Answer 105

Must use High Court

Answer 106

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.

Answer 107

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.

Answer 108

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.

Answer 109

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.

Answer 110

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.

Answer 111

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.

Answer 112

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.

Answer 113

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’.

Answer 114

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

Answer 115

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

Answer 116

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.

Answer 117

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)).

Answer 118

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.

Answer 119

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.

Answer 120

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.

Answer 121

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)

Answer 122

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.

Answer 123

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.

Answer 124

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)

Answer 125

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.

Answer 126

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:

Answer 127

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.

Answer 128

* 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.

Answer 129

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

Answer 130

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.

Answer 131

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

Answer 132

Third party debt order

Answer 133

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.

Answer 134

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

Answer 135

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.

Answer 136

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).

Answer 137

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.

Answer 138

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.

Answer 139

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.

Answer 140

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

Answer 141

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

Answer 142

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.

Answer 143

* 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.

Answer 144

* 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.

Answer 145

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).

Answer 146

* 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)

Answer 147

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).

Answer 148

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.

Answer 149

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.

Answer 150

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.

Answer 151

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.

Answer 152

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.

Answer 153

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.

Answer 154

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

Answer 155

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:

Answer 156

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)

Answer 157

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.

Answer 158

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.

Answer 159

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.

Answer 160

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.

Answer 161

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):

Answer 162

* 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)).

Answer 163

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

Answer 164

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.

Answer 165

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.

Answer 166

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):

Answer 167

County Court Circuit Judge

Answer 168

High Court

Answer 169

High Court Judge

Answer 170

High Court Judge

Answer 171

Court of Appeal

Answer 172

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.

Answer 173

(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.

Answer 174

* 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

Answer 175

* 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.

Answer 176

* 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

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Chapter 13: Trial, Enforcement & Appeals Flashcards

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