DR - Costs and Enforcement Flashcards
Non-party costs
Non-party was real party interested or responsible for bringing proceedings.
Can attend when determining issue of costs.
Security for costs
Discretionary power to order for security for costs if;
just to make such an order
One or more of the conditions in Part 25 applies.
The conditions;
Claimant resident outside 2005 Hague Convention State
Normally and habitually live (individuals)
Companies (central control and management are located).
Impecunious company -
evidence of assets
C has taken steps to make enforcement difficult -
Freezing injunction may be more appropriate.
Action and not motivation. Simply need too move.
Justness;
Strength of claim and defence (less likely less justified)
C’s ability to provide security -
Reasonable prospect of success, courts reluctant.
Causes of C’s impecuity -
Poor finances by D’s behaviour
Property within jurisdiction -
Timing -
soon as practicable.
Procedure -
all interim applications, write to C first and ask voluntarily.
If not notice of application with witness statement in suppport. Must establish a condition.
If successful will specify amount, date and form it will take, usually payment to court.
Offers to settle
= Settlement prior to issue of proceedings, claimant not entitled to recover legal costs.
Reached after litigation has commenced. Terms should be recorded in consent order or a Tomlin order.
Part 36 offers
May settle in any way. Does not have to use this.
Part 36 must;
Be in writing
Make clear pursuant to Part 36
Specify period of not less than 21 days if accepted.
Whole claim or part (and counter-claim).
Rule of deemed service applies. Included interest.
If accepted, paid within 14 days. If cannot agree on standard basis. Costs up to date of acceptance.
Late acceptance;
D pay C’s cost up to date of expiration of relevant period
C pays D’s cost thereafter until date of acceptance. (defendant serves )
Claimant serves only D pays C’s cost up to date of acceptance on the standard basis.
Proceedings paused to allow sum and costs to be paid.
Non-acceptance
Justness - order to impose penalties.
Genuine attempt, how close to trial etc…
Claimants offer
Wins at trial and equals or beats their own offer;
- Damages and interest in usual manner.
Up to 500k (additional 10%)
After 10% of first 500k and 5% up to 75,000.
D22 onwards % rate of interest increase to a rate not above 10% base.
D22 onwards pay costs on the indemnity basis.
Interest on indemnity basis as well.
Wins but does not beat own offer;
No effect.
C loses at trial;
Standard basis pays costs of D.
Defendant offer
C wants at trail and beats D’s Part 36 offer;
D will pay;
amount of judgement plus interest as in particulars of claim.
claimant’s cost on the standard basis.
C wins but fails to beat D’s offer;
- D pays C’s costs on standard basis from when those costs were incurred.
-After C pays D’s costs on standard basis from date of expiry of relevant period (D22) until judgement.plus
-interest (1% or 2% above base rate).
C loses at trial;
usual paying of costs .
Also
Pay interest on costs from D22 until judgement usually at 1 or 2% above base rate.
Enforcement of money judgements
Find out financial circumstances;
Appoint an enquiry agent
Apply to court for order to obtain information from debtor.
Order to obtain information
Order to attend on oath about finances;
1 - judgement creditor files notice of application at court seeking details of name and address and amount owed. Specific documents should be listed
2-personally served on debtor within seven days request payment of reasonable travelling expenses
3- usually take place in county court hearing centre for area where debtor resides or carries on business
4-officer of court of judge if requested
5- standard question asked, creditor may request additional. Written record of responses.
6- debtor fails to attend, judge makes committal order (usually suspended pending compliance).
Methods of enforcement
-
Taking control of goods
Part 83.
Sold at public auction.
High court (High court enforcement officer) and County Court by enforcement officer.
Reasonable force to enter business premises if believe goods inside. Cannot force entry into debtor’s home.
Usual contents may be seized.
Exempt?
Necessary items only to individuals.
Reasonably required for basic needs of debtor and family. No work tools or study tools subject to a maximum aggregate of £1,350.
Goods belonging solely to others cannot. Co-owned disputes resolved by court.
Choice of court;
Judgement in High court may issue writ of control of that court.
If county diff procedure;
Less than 600
Warrant of control
bailiff
600 or more but less than 5,000;
either country or high, if high judgement must be transferred
Warrant or writ of control as appropriate to court.
5,000 or more
High court (except Consumer Credit Act 1974)
Writ of control
High Court enforcement officer
High court
Judgement creditor delivers request and two copies of writ of control to court office with judgement
Court must seal the writ and return one copy to the creditor.
Creditor forwards this to HCEO for country where debtor resides or carries on business for writ to be executed.
County court;
Creditor files form of request for warrant of control at County Court hearing centre that serves address where goods are to be seized.
Warrant executed by enforcement officer for district where debtor resides or carries on business.
If debtor need time may enter into controlled goods agreement. Will not dispose of goods. Remain for few days to allow payment.
-Can refuse entry, if no living accommodationn can force entry (reasonable force).
High court interest keeps ticking.
Charging orders
Part 73
Land or securities.
Wait until increase in value.
Land;
Co-owned - on debtor beneficial interest.
Registered at Land Registry (Land Charges).
Apply for order for sale of land at court.
Procedure -
More than 5,000 either high or country.
If county to county court money claims centre
Three stages;
Interim charging order (ICO)
Creditor files application notice, details of judgement and debt. Land over which charging order sought and names and addresses of persons affected such as a party with prior charge. Creditor draft ICO.
Court officer with hearing, make order or refer to judge.
Must be served within 21 days (notice, documents)
Debtor has 14 days to request a judge review.
Final charging order -
Any person objects, must file and serve written evidence stating grounds of objection within 28 days of service.
If objection court will transfer application to debtors home court for hearing
At hearing can make FCO, discharge ICO or direct a trial of any issue in dispute.
Order for sale -
If made final, has charge on debtors land, can be enforced by an order for sale of property. Fresh proceedings must be commenced.
Advs and Disadvs;
Good if lack liquid.
Interest accrues.
Children, previous charges may make it difficult
Also on debtor’s beneficial interest on specified securities UK government stock shares and unit trusts .
Third party debt orders
Debtor may be owed money.
Part 72 order to pay creditor sufficient monies to satisfy judgement.
Procedure;
In court that made order.
-creditor applies to court without notice to debtor providing details (name and addresss of branch where money is held and account number)
-judge makes interim order which has effect of freezing bank accounts or funds held by the third party. Hearing no less than 28 days later
-At hearing court will consider objections and unless good reason not to do so, order will be made final.
informed creditor may move funds on judgement.
Attachment of earnings
Country court only. If high court proceedings transferred.
Part 89
Procedure;
Creditor applies to Country Court money claims centre
Court informs debtor of aplciatio and requires to pay sum due or file statement of means giving details of income and outgoings.
Court officer will make an attachments of earnings order fixing repayment rate. Insufficient info goes to judge.
Normal deduction rate and protected earnings rate. Latter what is reasonable to live on.
Order sent to parties and debtors employee with instructions. Employee can deduct small amount for admin costs.
Enforcement outside the jurisdiction
Scotland and Northern Ireland;
Part 74
Creditor;
obtains certificate confirming date of jugdement, sum awarded and details of interest and costs
makes an application to the court in Scotland or NI supported by evidence to register within six months.
Commonwealth -
Australia, Pakistan and Jersey.
Administration of Justice Act 1920 (High court) and Foreign Judgements (Reciprocal Enforcement) Act 1933 (Country).
Final and registered within 12 months (High) 6 years for (country).
Other countries
2005 Hague Convention.
Common law - determined by national law of particular country. fresh proceedings.
