Part 36, Appeals and enforcement

Question 1

The claimant in a breach of contract claim has been granted permission to appeal the decision made by a circuit judge of the County Court in favour of the defendant. The appeal will proceed before a High Court judge.

Which of the below is a potential ground on which the claimant’s appeal could be granted?

A-The appeal has a real prospect of success.

B-The appeal raises an important point of principle or practice.

C-The decision of the lower court was disproportionate.

D-The balance of convenience lies in granting the claimant’s appeal.

E-The decision of the lower court was wrong (as to law, interpretation of facts or exercise of discretion).

Answer 1

ption E is correct. An appeal may be granted if the decision of the lower court was wrong (as to law, interpretation of facts or exercise of discretion), or if the decision of the lower court was unjust because of a serious procedural irregularity in the proceedings of the lower court.

Option A is wrong. The appeal having a real prospect of success is a potential ground for granting permission to appeal, rather than a potential ground for granting the appeal. The facts state that the claimant has already been granted permission to appeal.

Option B is wrong. The appeal raising an important point of principle or practice is relevant to the permission to appeal stage when an appeal is to the Court of Appeal or the Supreme Court. The facts state that the claimant has already been granted permission to appeal.

Option C is wrong. It does not correctly state a potential ground of appeal as set out above in the feedback for Option E.

Option D is wrong. It does not correctly state a potential ground of appeal as set out above in the feedback for Option E.

Question 2

A company is a judgment debtor and owes damages of £500,000 to the judgment creditor. The managing director of the judgment debtor company attends an information hearing to be questioned. It is recorded that the company rents a factory worth £700,000 and owns an office worth £400,000 with a mortgage of £50,000 and no other prior charges. Each of the five company directors drives a company car currently worth £50,000. The managing director has recently bought a boat for his own personal use worth £300,000.

Is the judgment creditor likely to be able to enforce payment of the whole amount of the damages?

A-Yes, because there is sufficient equity in the office to enforce against and the cars can be seized.

B-Yes, because the factory is worth significantly more than the damages owed.

C-Yes, because the judgment creditor can enforce against the office and the boat.

D-No, because the company cars are necessary items and exempt from seizure.

E-No, because an order for sale will be unsuccessful where there is a mortgage over a property.

Answer 2

Option A is correct because the office is owned by the judgment debtor and can be enforced against. There is a mortgage over the property, however there is sufficient remaining equity (£350,000). The cars can be seized because they belong to the judgment debtor rather than the directors themselves. The equity in the office and the aggregate value of the cars will more than cover the value of the damages owed.

Option B is wrong because although the value of the factory would more than cover the value of the damages owed, the judgment debtor does not own the property and it therefore cannot be enforced against.

Option C is wrong because although the judgment creditor can enforce against the office (as above), the boat cannot be enforced against because it belongs to the managing director rather than the company.

Option D is wrong because the company cars are not exempt from seizure under the ‘necessary items exemption’. Subject to their value, vehicles may be exempt if they are necessary to the judgment debtor for work, however the exemption only applies to individual judgment debtors and not to a company.

Option E is wrong because a mortgage over a property does not preclude an order for sale. The property may be sold and the mortgage would be paid off before the remaining equity is enforced against.

Question 3

A judgment creditor is considering taking enforcement action against a judgment debtor. The judgment debtor is an individual with two bank accounts. One account is a sole account which became overdrawn shortly after the judgment was made. The other account is a joint account with the judgment debtor’s spouse which is in credit.

A solicitor advises the judgment creditor to apply for a third party debt order over both accounts.

Is the solicitor’s advice correct?

A-No, because applying for a third party debt order would only assist the judgment creditor in relation to the sole account.

B-Yes, because it appears the judgment debtor has taken steps to make enforcement difficult.

C-No, because applying for a third party debt order would only assist the judgment creditor in relation to the joint account.

D-Yes, because the judgment debtor’s spouse can seek half the monies in the joint account and the judgment creditor receives the other half.

E-No, because applying for a third party debt order would not assist the judgment creditor in respect of either account.

Answer 3

Option E is correct. The solicitor’s advice is wrong because applying for a third party debt order would not assist the judgment creditor in respect of either account. Regarding the overdrawn sole account, the order would be ineffective if the account is not in credit on the day when the order is served. Regarding the joint account, the order will not be granted over an account in joint names.

Option A is wrong. Applying for the order would not assist in relation to either account for the reasons given above.

Option B is wrong. Regardless of whether the judgment debtor has taken steps to make enforcement difficult, applying for the order would not assist in relation to either account for the reasons given above.

Option C is wrong. Applying for the order would not assist in relation to either account for the reasons given above.

Option D is wrong. As explained above, the order will not be granted over an account in joint names.

Question 4

A High Court Enforcement Officer (HCEO) is executing a writ of control against a judgment debtor, which is a medium-sized company. The HCEO attends the judgment debtor’s office, which does not have living accommodation attached. The judgment debtor’s goods are believed to be inside the office. The HCEO would be able to break into the office using minimal force.

Is the HCEO permitted to break into the office?

A-No, because the HCEO must have permission to enter from a company director.

B-No, because the HCEO can only break into offices with living accommodation attached.

C-No, because the HCEO cannot force entry into any premises.

D-Yes, because the HCEO is permitted to use reasonable force to break into the office.

E-Yes, because the HCEO is acting under a writ of control rather than a warrant of control.

Answer 4

Option D is correct. The HCEO can use reasonable force to break into the office as these are business premises with no living accommodation attached and the judgment debtor’s goods are believed to be inside.

Option A is wrong. The HCEO does not need a company director’s permission to enter the office and can use reasonable force to break into the office, for the reasons given above.

Option B is wrong. The HCEO can use reasonable force to break into business premises if there is no living accommodation attached (and the judgment debtor’s goods are believed to be inside).

Option C is wrong. As explained above, there are some circumstances where the HCEO can break into business premises.

Option E is wrong. Although it is correct that the HCEO can break into the office, there is not a distinction between writs and warrants of control in this regard.

Question 5

A claimant in a personal injury claim receives a valid Part 36 offer from the defendant on 1 May. The offer expires on 22 May (Day 21) but is not withdrawn. The claimant does not accept the offer as it is too low, based on evidence available at the time. On 15 July, the claimant obtains new evidence regarding their prognosis, and on their solicitor’s advice accepts the Part 36 offer.

What advice should the solicitor give to the claimant in relation to the financial consequences of accepting the offer?

A-The claimant will likely pay the defendant’s costs from when the defendant first instructed solicitors up to 15 July.

B-The defendant will likely pay the claimant’s costs from when the claimant first instructed solicitors up to 15 July.

C-The parties will likely bear their own costs from 23 May up to 15 July.

D-The defendant will likely pay the claimant’s costs on the indemnity basis from 23 May up to 15 July.

E-The claimant will likely pay the defendant’s costs from 23 May up to 15 July.

Answer 5

Option E is correct because the claimant has accepted the defendant’s Part 36 offer after the relevant period has expired. If the parties cannot agree on costs, the court will usually order that the defendant pay the claimant’s costs up to the date the relevant period expires, and the claimant pays the defendant’s costs from Day 22 until the date of acceptance.

Option A is wrong because the claimant is only liable for the defendant’s costs once the relevant period offer has expired.

Option B is wrong because the defendant is not liable for the claimant’s costs once the relevant period has expired.

Option C is wrong because the claimant will be penalised for accepting the offer late and is likely to pay the defendant’s costs from when the relevant period expires.

Option D is wrong because the defendant will not likely pay the claimant’s costs from 23 May up to 15 July and would not pay costs on the indemnity basis.

Question 6

A circuit judge of the County Court has given judgment in favour of the defendant in a claim. The claimant is aggrieved by the outcome and wishes to appeal. The circumstances do not warrant a leapfrog appeal.

Which of the below is correct in relation to the appeal?

A-The claimant has 28 days to appeal.

B-The claimant must obtain permission to appeal either from the court that made the decision or from the court that will hear the appeal.

C-The appeal will be to a district judge of the County Court.

D-To obtain permission to appeal, the claimant must establish that the case raises an important point of principle or practice.

E-To obtain permission to appeal, the claimant must establish that the appeal has a real prospect of success.

Answer 6

Option B is correct. The claimant is required to obtain permission to appeal, and this can be obtained either from the court that made the decision or from the court that will hear the appeal.

Option A is wrong. The decision being appealed was made in the County Court, so the claimant has 21 days to appeal rather than 28 days.

Option C is wrong. The decision was made by a circuit judge of the County Court, so the appeal will be to a High Court judge rather than a district judge of the County Court.

Option D is wrong. If an appeal is to the Court of Appeal or the Supreme Court, the case must raise an important point of principle or practice for permission to appeal to be granted. However, the appeal in this case is to a High Court judge.

Option E is wrong as the claimant could seek permission to appeal on the ground that the appeal has a real prospect of success or alternatively on the ground that there is some other compelling reason why the appeal should be heard.

Question 7

A claimant makes an offer to the defendant to settle the whole claim for £200,000. Proceedings have not yet been issued. The offer is sent by email on 9 February and states that the offer is made pursuant to Part 36 of the Civil Procedure Rules. The email confirms that the offer will expire on 9 March.

Has the claimant made a valid Part 36 offer?

A-Yes, because a Part 36 offer can be made either orally or in writing.

B-No, because a Part 36 offer can never be made by email.

C-Yes, because the offer complies with the relevant formalities.

D-No, because Part 36 offers cannot be made before proceedings are issued.

E-No, because the email does not specify a period of 21 days for acceptance of the offer.

Answer 7

Option C is correct because the offer complies with all of the relevant formalities for a Part 36 offer. The offer is made in writing, makes it clear it is pursuant to Part 36, specifies a period of not less than 21 days for acceptance and states that it is in relation to the whole of the claim.

Option A is wrong because Part 36 offers must be made in writing.

Option B is wrong because, subject to the rules on service, Part 36 offers may be made by email.

Option D is wrong because Part 36 offers can be made at any point during the claim.

Option E is wrong because the offer must specify a period of not less than 21 days; a valid offer may specify a period of 21 days or more.

Question 8

A breach of contract claim proceeded to trial in the County Court and a circuit judge gave judgment in favour of the claimant. The defendant is dissatisfied with the outcome and wishes to appeal. The circumstances do not warrant a leapfrog appeal.

Which of the below correctly describes the destination of the appeal?

A-High Court judge

B-District judge of the County Court

C-Court of Appeal

D-Supreme Court

E-Master of the High Court

Answer 8

Option A is correct. An appeal of a decision of a circuit judge of the County Court is to a High Court judge.

Option B is wrong. An appeal of a decision of a circuit judge of the County Court would not be to a district judge of the County Court. In fact, an appeal of a decision of a district judge of the County Court would be to a circuit judge of the County Court.

Option C is wrong. An appeal of a decision of a circuit judge of the County Court would be to a High Court judge, rather than the Court of Appeal.

Option D is wrong. An appeal of a decision of a circuit judge of the County Court would be to a High Court judge, rather than the Supreme Court.

Option E is wrong. An appeal of a decision of a circuit judge of the County Court would be to a High Court judge, rather than a Master of the High Court.

Question 9

A defendant makes a Part 36 offer to a claimant to settle their claim which specifies a relevant period of 21 days. The claimant rejects the offer. The claim proceeds to trial and the claimant is successful, however the amount awarded is significantly less than the Part 36 offer made by the defendant.

Will the claimant be expected to pay any of the defendant’s costs?

A-Yes, because the claimant will be expected to pay the defendant’s costs on the indemnity basis from the date of expiry of the relevant period until judgment plus interest on those costs.

B-No, because the defendant will be expected to pay the claimant’s costs on the standard basis from when costs were first incurred until judgment.

C-Yes, because the claimant will be expected to pay the defendant’s costs on the standard basis from when costs were first incurred until judgment plus interest on those costs.

D-Yes, because the claimant will be expected to pay the defendant’s costs on the standard basis from the date of expiry of the relevant period until judgment plus interest on those costs.

E-No, because the parties will be expected to bear their own costs from the date they were incurred until judgment.

Answer 9

Option D is correct because in this scenario there will be a split costs order; the claimant is successful but has missed the opportunity to accept a higher offer. The defendant will therefore be expected to pay the claimant’s costs until the relevant period expired (Day 21), and the claimant will pay the defendant’s costs on the standard basis from the date of expiry of the relevant period (Day 22) until judgment, plus interest on those costs.

Option A is wrong because the claimant will be expected to pay the defendant’s costs on the standard basis, not on the indemnity basis.

Option B is wrong because the claimant will be expected to pay the defendant’s costs from Day 22 until judgment.

Option C is wrong because the claimant will only be expected to pay the defendant’s costs from Day 22.

Option E is wrong because the claimant will be expected to pay the defendant’s costs from Day 22 until judgment.

Question 10

A judgment creditor obtained a High Court judgment against a judgment debtor and wishes to enforce the judgment in Northern Ireland. The judgment creditor has obtained a certificate confirming the date of the judgment, the sum awarded and details of interest and costs.

What step should the judgment creditor now take?

A-The judgment creditor should now apply to the High Court for permission to enforce the judgment outside of the jurisdiction.

B-The judgment creditor should now issue fresh proceedings in Northern Ireland to pursue its claim.

C-The judgment creditor should now apply to the court in Northern Ireland to register the judgment within six months.

D-The judgment creditor should now cease enforcement action as it will not be possible to enforce the judgment in Northern Ireland.

E-The judgment creditor should now use local methods of enforcement in Northern Ireland.

Answer 10

Option C is correct. The judgment creditor should now apply to the court in Northern Ireland (supported by evidence) to register the judgment within six months. The judgment creditor needs to successfully apply for registration of the judgment before it may be enforced using local methods.

Option A is wrong. The relevant application is for registration of the judgment and should be made within six months to the court in Northern Ireland.

Option B is wrong. The judgment creditor is not required to issue fresh proceedings in the court of Northern Ireland to pursue its claim – instead, an application for registration of the judgment should be made as explained above.

Option D is wrong. It may be possible to enforce the jurisdiction in Northern Ireland, and the judgment creditor should now apply for registration of the judgment as explained above.

Option E is wrong. The judgment creditor must successfully apply for registration of the judgment before it may be enforced using local methods.

Question 11

A circuit judge of the County Court has given judgment in favour of the claimant in a negligence claim. The defendant is unhappy with the outcome and wishes to appeal. The circumstances do not warrant a leapfrog appeal.

The defendant’s solicitor is aware of the following possible grounds for seeking permission to appeal:

The appeal has a real prospect of success (‘Ground 1’)
There is some other compelling reason why the appeal should be heard (‘Ground 2’)
The appeal raises an important point of principle or practice (‘Ground 3’)

Which of the below best describes the grounds which would need to be established for permission to appeal to be granted?

A-Grounds 1, 2 and 3 must all be established.

B-Ground 1 and Ground 2 must be established but Ground 3 need not be established.

C-Ground 1 or Ground 2 must be established but Ground 3 need not be established.

D-Ground 3 must be established, and either Ground 1 or Ground 2 must also be established.

E-Ground 1 and Ground 3 must be established but Ground 2 need not be established.

Answer 11

Option C is correct. There are two grounds on which permission to appeal may be granted. The defendant must establish either that the appeal would have a real prospect of success (Ground 1) or that there is some other compelling reason why the appeal should be heard (Ground 2). The defendant need not establish Ground 3 (that the appeal raises an important point of principle or practice) because this ground applies when an appeal is made to the Court of Appeal or the Supreme Court. The facts confirmed there would be no leapfrog appeal and an appeal from a circuit judge in the County Court would be made to a High Court judge, meaning Ground 3 would not need to be established.

Option A is wrong. The defendant will only need to establish Ground 1 or Ground 2 for the reasons given above.

Option B is wrong. The defendant will only need to establish Ground 1 or Ground 2, rather than both of these grounds, as explained above.

Option D is wrong. Although it is correct that either Ground 1 or Ground 2 must be established, Ground 3 need not be established for the reasons given above.

Option E is wrong. The defendant could establish Ground 2 rather than Ground 1, and need not establish Ground 3 for the reasons given above.

Question 12

A claimant makes a Part 36 offer of £100,000 which the defendant does not accept. At trial the court awards the claimant £120,000 in damages and interest as claimed in the particulars of claim. The court determines that it is just for Part 36 sanctions to apply to the defendant.

What is the value of the additional amount the defendant will pay?

A-£12,000

B-£10,000

C-£6,000

D-£5,000

E-£1,200

Answer 12

Option A is correct. The claimant has beaten its own Part 36 offer. For damages of up to £500,000, the defendant must pay an additional amount of 10% of the sum awarded. The additional amount is therefore 10% of £120,000 = £12,000.

Option B is wrong. This figure is 10% of the Part 36 offer, rather than 10% of the sum awarded.

Option C is wrong. This figure is 5% of the sum awarded, rather than 10%.

Option D is wrong. This figure is 5% of the Part 36 offer, rather than 10% of the sum awarded.

Option E is wrong. This figure is 1% of the sum awarded, rather than 10%.

Question 13

A claimant has instructed a solicitor in a claim for personal injury. The defendant denied liability, but made a Part 36 Offer to settle the claim for the sum of £30,000. The relevant period for expiry of the offer was 24 July. The offer was rejected by the claimant. At trial judgment was awarded to the claimant in the sum of £28,000 (including interest).

Which of the following statements best describes the costs order which will be awarded by the court?

A-The court will order that the defendant pays the claimant’s costs, because the claimant was awarded judgment and the standard ‘loser pays’ rule will apply even though the defendant made a Part 36 offer.

B-The court will order that the claimant pays the defendant’s costs, because the claimant was awarded judgment but failed to obtain a judgment more advantageous than the defendant’s Part 36 offer.

C-The court will make a split costs order, because the claimant failed to obtain a judgment more advantageous than the defendant’s Part 36 offer. The defendant must pay half the claimant’s costs up the expiry of the relevant period on 24 July and the claimant must pay half of the defendant’s costs (and interest) from 25 July until judgment.

D-The court will make a split costs order because the claimant failed to obtain a judgment more advantageous than the defendant’s Part 36 offer. The defendant must pay the claimant’s costs up to the expiry of the relevant period on 24 July, and the claimant must pay the defendant’s costs (and interest) from 25 July until judgment.

E-The court will make a split costs order because the claimant failed to obtain a judgment more advantageous than the defendant’s Part 36 offer. The claimant must pay the defendant’s costs up to the expiry of the relevant period on 24 July and the defendant must pay the claimant’s costs (and interest) from 25 July until judgment.

Answer 13

Option D is the correct answer. When an offer is made under Part 36 of the Civil Procedure Rules (CPR) special costs consequences will apply which are designed to encourage settlement and can operate to punish litigants who reject offers and then go on to receive less at trial than the offer they refused (CPR 36.17). In some circumstances Part 36 can operate to partially reverse the standard ‘loser pays’ principle contained in CPR 44.2.

In this case, the defendant made an offer which was rejected by the claimant, but the claimant went on to be awarded less at trial than the offer. This is captured by CPR 37.17(1) (a) and (3), which functions to protect the costs position of defendants who make Part 36 offers which are rejected. The court will make a split costs order, in which the defendant pays the claimant’s costs up the expiry of the relevant period (as per the normal ‘loser pays’ principle in CPR 44.2) but the claimant pays the defendant’s costs from the expiry of the relevant period to judgment. This is to compensate the defendant for having to proceed with a trial which could have been avoided if the claimant has accepted the defendant’s offer.

Option A is wrong because whilst the ‘loser pays’ general principle is correct, this is substituted by the more prescriptive costs regime when Part 36 offer is made (which can partially reverse the ‘loser pays’ principle). See option A above.

Option B is wrong because whilst it correctly reflects some of CPR 36.17(1)(a) and the normal ‘loser pays’ rule being reversed in this situation, it does not follow through to the most likely order being a split costs order under CPR 36.17(3).

Option C is wrong because it is not the correct description of a split costs order and there is no ‘half’ apportionment between the parties under CPR 36.17.

Option E is wrong because it deliberately reverses the burden of which party pays whose costs under a split costs order under CPR 36.17(3).

Question 14

A solicitor acts for a defendant in a £140,000 money claim. The claimant makes a Part 36 offer to accept £80,000 in settlement of its claim. The solicitor is instructed by the defendant not to accept the offer. At trial the claimant obtains judgment for £60,000. The solicitor estimates that a like-for-like calculation would not alter this figure by more than £1,000.

Which of the following statements best describes the likely costs order that the court will make in the circumstances of this case?

A-The defendant to pay the claimant’s costs on the standard basis up to the last day of the relevant period of the claimant’s offer, and the claimant to pay the defendant’s costs on the standard basis thereafter.

B-The defendant to pay the claimant’s costs on the standard basis from when the claimant first began to incur those costs up to the date of judgment.

C-Each of the claimant and the defendant to bear its own costs from the date each began to incur those costs up to the date of judgment.

D-The claimant to pay the defendant’s costs on the standard basis from when the defendant first began to incur those costs up to the date of judgment.

E-The defendant to pay the claimant’s costs on the standard basis up to the last day of the relevant period of the claimant’s offer, and on the indemnity basis thereafter.

Answer 14

Option B is the correct answer. Although the claimant has made a Part 36 offer it has not obtained a judgment at least as advantageous as that offer, so the relevant consequences under Civil Procedure Rule 36.17 are not triggered. On the facts as presented, the claimant has succeeded in its claim and would ordinarily expect to be able to recover its costs from the defendant in accordance with the indemnity principle (that the losing party pays the winning party’s costs). As to the basis of assessment for costs, there is nothing on the facts to suggest any departure from the usual standard basis.

Option A is wrong. It resembles a ‘split costs’ order of the kind that might be appropriate where a defendant makes a part 36 offer that the claimant fails to beat at trial. This is not what has happened on the facts, and there is no other obvious reason for the court to make an order in these terms.

Option C is wrong. It does not reflect the indemnity principle that the winning party will generally expect to recover its costs from the losing party.

Option D is wrong. It does not reflect the indemnity principle that the winning party will generally expect to recover its costs from the losing party. Option D actually sets out the reverse of this approach, but for no obvious reason on the facts.

Option E is wrong. It resembles a costs order that might be appropriate where a claimant makes a Part 36 offer that it then equals or beats at trial. This is not what has happened on the facts and there is no other obvious reason for the court to make an order in these terms.

Question 15

In a High Court claim for damages, a claimant made a Part 36 offer to a defendant which was rejected. At trial the claimant succeeded on liability and obtained a judgment which was at least as advantageous to the claimant as that contained in their own Part 36 offer. The amount awarded in damages, excluding interest, was £1.4 million.

Which of the following statements best describes a financial consequence that will follow under Part 36?

A-Unless the court considers it unjust to do so, the defendant will be ordered to pay interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% for some or all of the period starting with the date on which the relevant period expired.

B-If the court considers it just to do so, the defendant can be ordered to pay interest on all or part of the damages awarded, at up to 10% above base rate for some or all of the period starting with the date of issue of proceedings.

C-The court must, unless it considers it unjust to do so, order that the claimant is entitled to costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the claimant first instructed solicitors.

D-The court must usually order that the defendant pays the claimant’s costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired and interest on those costs at a rate not exceeding 10% above base rate.

E-The court must, unless it considers it unjust to do so, order that the claimant is entitled to an additional amount of 10% of the amount awarded by the court to the claimant.

Answer 15

Option D is the best answer as it accurately explains the provisions of Part 36.17(1) (b) and (4) (b) and (c).

Option A is not the best answer as the order, unless the court considers it unjust to do so, will be that the defendant pay interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired: Part 36.17(4) (a) CPR.

Option B is not the best answer for two reasons: firstly, the court must make the order unless it is unjust to do so and secondly, the period will run from the date on which the relevant period expired and not from the date of issue of proceedings.

Option C is not the best answer because, as option D states, the order of costs on the indemnity basis, under Part 36, will run from the date on which the relevant period expired not the date the claimant first instructed solicitors.

Option E is not the best answer because the additional award (Part 36.17(4) (d)) is capped at £75,000 so an additional award of 10% will not be made where the judgment exceeds £1 million as it does here.

Question 16

A solicitor acts for the claimant in a monetary claim. Following disclosure of documents and inspection, the solicitor discusses with the client the making of an offer of settlement to the defendant under Part 36 of the Civil Procedure Rules.

What advice should the solicitor give to the client regarding the making of a part 36 offer?

A-A Part 36 offer is made when the letter is sent to the offeree.

B-A Part 36 offer may be made orally or in writing.

C-A Part 36 offer may be made before proceedings have begun.

D-A Part 36 offer cannot be accepted without permission of the court once the relevant period stated in the Part 36 offer has expired.

E-A Part 36 offer which is accepted within its relevant period has no other effect under Part 36 other than to stay proceedings.

Answer 16

Option C is the correct because under CPR 36.7(1) a Part 36 offer may be made at any time, including before the commencement of proceedings.

Option A is wrong because under CPR 36.7(2) a Part 36 offer is made when it is served on the offeree.

Option B is wrong because under CPR 36.5(1) a Part 36 offer must be in writing.

Option D is wrong because under CPR 36.11 a Part 36 offer can be accepted after the relevant period has expired without permission.

Option E is wrong because under CPR Part 36.13 costs consequences are also stipulated. Where a claimant’s Part 36 offer is accepted by the defendant within the relevant period, the claimant is entitled to costs of the proceedings up to the date on which notice of acceptance is served on the claimant.

Question 17

Quick Q:

A claimant issued proceedings against a defendant for breach of contract to recover the contract price of £120,000. The defendant defended the claim on the basis that the goods were not of satisfactory quality. Proceedings have been issued and the claimant made a valid part 36 offer to settle the claim in the sum of £75,000. The offer was deemed served on the 2 June and gave the usual relevant period of 21 days.

The trial takes place and judgment was given in the sum of £100,000.

Which of the following statements best describes the effect of the claimant’s part 36 offer?

B-The defendant will have to pay an additional amount of damages as the offer was effective.

Answer 17

Option B is the correct answer. The defendant will have to pay an additional amount of compensation, in this case it would be £10,000 being 10% of the first £500,000 awarded (see CPR 36.17(4)). Option A is wrong as the claimant’s Part 36 offer is at least as advantageous as the judgment. Option C is wrong as the indemnity costs will only be awarded from day 22 of the claimant’s offer (see CPR 36.17 (4)). Option D is wrong as the defendant will be required to pay interest on costs from day 22 (see CPR 36.17 (4)). Option E is wrong as the last day of the relevant period is the 23 June.

Question 18

A defendant makes a CPR Part 36 (‘Part 36’) offer following service of its defence to settle the whole of a claim for the sum of £30,000. The claimant rejects the offer, and instead makes a counter-offer for £45,000 which the defendant does not accept. Several months later, the defendant makes a second Part 36 offer for the sum of £15,000.

The claimant subsequently obtains expert evidence which weakens its case. The claimant is therefore keen to settle the claim and accepts the defendant’s first offer of £30,000. The defendant refuses to pay and argues that the claimant has no right to accept the first offer.

Does the defendant need to pay the claimant the first offer amount of £30,000?

A-No, because the claimant’s rejection and counter-offer means the offer is no longer open for acceptance.

B-No, because the defendant’s second offer replaces its first offer.

C-No, because the court’s permission must be obtained before accepting a previously rejected offer.

D-Yes, because the defendant did not serve a notice of change or a notice of withdrawal of the first offer.

E-Yes, because the defendant did not respond to the claimant’s counter-offer.

Answer 18

Option D is correct because a Part 36 offer is open for acceptance by an offeree until the offeror either withdraws it by serving written notice of withdrawal, or its terms are changed by serving a written notice of change (CPR 36.9(2)-(3)).

Option A is wrong because neither rejection nor the making of a counter-offer by the offeree has any effect (Gibbon v Manchester City Council).

Option B is wrong because the making of a second offer has no effect on the first (in contrast to the usual rules of contract law) (Gibbon v Manchester City Council).

Option C is wrong because the court’s permission is required in very limited circumstances (CPR 36.23) and would not apply here.

Option E is wrong because the defendant’s non-response has no bearing on the offer.

Question 19

The claimant has obtained judgment for £74,000 against the defendant. The defendant disputes that she has the means to pay the judgment debt and points out that she lives with her mother and has no regular income. The claimant has received information from a friend that the defendant has significant assets including properties, which she owns in the city centre.

Which of the following best describes the action that the claimant should take?

A-The claimant should apply for an order to obtain information from the defendant relying upon the court officer to ask standard questions.

B-The claimant should write to the defendant requesting that she provide details of her income, expenses, assets and liabilities.

C-The claimant should apply for an order to obtain information from the defendant and submit additional questions.

D-The claimant should instruct an enquiry agent to seek further details about the defendant’s finances and then apply to the court for an order to obtain information, including additional questions.

E-The claimant should instruct an enquiry agent to seek further details about the defendant’s finances.

Answer 19

Option D is correct. Although the claimant could write to the defendant asking for details of her finances, given that the debtor has already stated she does not have the means to pay, it is unlikely she will respond properly – hence, option B is wrong. The claimant should consider applying to the court for an order to obtain information as there are sanctions if the defendant fails to comply. However, as the defendant appears to be hiding assets, she may not answer the questions fully or truthfully; thus, although options A and C are correct, they may not be the most effective approach.

The best way forward is option D because the claimant will be able to find out specific details about the defendant’s finances, enabling them to tailor questions appropriately when they apply for an order to obtain information. As the judgment is for a significant sum of money, it would be worth the claimant taking both steps before proceeding to enforcement. Option E is not wrong, but is not as complete as option D.

Question 20

The claimant, an author, was granted a County Court judgment in the sum of £25,000 against her former publisher. The defendant was ordered to pay this sum within 21 days of the date of the judgment. The defendant failed to pay and the claimant had no option but to consider methods of enforcement. They were advised by a solicitor that the most effective method would be to take control of the defendant’s goods.

In which court would the claimant need to issue enforcement proceedings and what document should she use?

A-The County Court using a warrant of control.

B-The High Court using a writ of control.

C-The County Court using a writ of control.

D-Either the County Court or the High Court using either a warrant or a writ of control.

E-The High Court using a warrant of control.

Answer 20

Option B is the correct answer because the County Court judgment is for £5,000 or more, so must be enforced in the High Court, and the required document in this court is a writ of control.

Options A and C are wrong because the County Court is only appropriate where the judgment sum awarded by the County Court is less than £5,000.

Option D is wrong because the judgment was obtained in the County Court and the sum awarded was for £5,000 or more, so the High Court is the appropriate court in which to enforce judgment.

Option E is wrong because a writ, not a warrant, of control is required in the High Court.

Question 21

In civil cases, is there an automatic right to appeal?

Answer 21

There is no automatic right of appeal in civil cases, so permission to appeal must be sought.

Question 22

Necessary items exemption when trying to seize items to pay debts

Answer 22

Applies to individuals only
Equipment has to be necessary for work Worth less than the maximum aggregate value of £1,350

Question 23

Defendant accepted the Part 36 offer within the relevant period, will the defendant be required to pay any of the claimant’s costs?

Answer 23

Yes, because the defendant must pay the claimant’s costs up to the date of acceptance.

Explanation: The defendant has accepted a claimant’s Part 36 offer within the 21-day relevant period, so the claimant will be entitled to its costs up to the date of acceptance (on the standard basis).

Question 24

How long does a party have to act to seek further clarification as to the part 36 offer?

Answer 24

Option A is the best answer: this correctly summarises the position that is set out in CPR Part 36, namely that once a Part 36 offer has been made, the offeree has 7 days in which to request clarification of the offer (CPR Part 36.8). Requests for clarification may be made where, for instance, the offeree seeks a breakdown of the global figure, and to see what has been offered for specific heads of damage.

Question 25

A judgment creditor has investigated a judgment debtor’s assets. In particular, a search of HM Land Registry has revealed details of a residential property which is jointly owned by the judgment debtor and her husband. There is a mortgage secured against the property by a residential lender. However, there is enough equity to make an application to the court for a charging order attractive. A solicitor has been instructed to make the application for a charging order.

Which of the following is correct regarding a charging order?

A-Before applying to the court for a charging order, advance notice must be given to the judgment debtor of the intention to apply together with a final opportunity to pay the judgment debt.

B-The application for a charging order cannot be made earlier than 14 days after the date on which advance notice is given to the residential lender of the intention to apply.

C-The application for a charging order cannot be made earlier than seven days after the date on which advance notice is given to the judgment debtor’s husband (as a joint owner) of the intention to apply.

D-The application for a charging order can be made without giving advance notice of the intention to apply to the judgment debtor, residential lender, or the judgment debtor’s husband.

E-The application for a charging order can be made without advance notice to the judgment debtor or the judgment debtor’s husband, but the residential lender must be given seven days’ advance notice.

Answer 25

Option D is correct. The application is made without advance notice to the judgment debtor or any other interested party. The application will be served with any supporting documents and the interim charging order once made.

Option A is wrong. There is no requirement to give advance notice to the judgment debtor. Indeed, this is likely to be counterproductive as the judgment debtor might try to take action to defeat the purpose of the application if forewarned.

Option B is wrong. There is no requirement to give advance notice to the residential lender.

Option C is wrong. There is no requirement to give advance notice to the joint owner of the property to be charged.

Option E is wrong. Whilst it is correct to say that advance notice need not be given to the judgment debtor or joint owner, there is no requirement to give advance notice to the residential lender.

Question 26

A judgment creditor is aware that the judgment debtor has a bank account in his own name with a substantial credit balance. A solicitor has been instructed to make an application for a third party debt order (‘TPDO’).

Which of the following is correct in relation to a TPDO?

A-The application for a TPDO cannot be made earlier than 14 days after the date on which advance notice is given to the judgment debtor of the intention to apply.

B-The application for a TPDO cannot be made earlier than 14 days after the date on which advance notice is given to the bank of the intention to apply.

C-The application for a TPDO should be made without advance notice to the judgment debtor. However, the bank must be given seven days’ notice of the intention to apply.

D-The application for a TPDO should be made without advance notice to the bank. However, the judgment debtor must be given seven days’ notice of the intention to apply.

E-The application for a TPDO should be made without giving advance notice to either the judgment debtor or the bank of the intention to apply.

Answer 26

Option E is correct. The application is made without advance notice to the judgment debtor or the bank. The judge will make an interim order and a hearing will be listed no less than 28 days later at which the court will consider any objections. The bank will be served with the interim TPDO, which will effectively freeze the account until final determination of the application at the hearing.

Option A is wrong. There is no requirement to give advance notice to the judgment debtor. Indeed, this is likely to be counterproductive as the judgment debtor might try to take action to defeat the purpose of the application if forewarned.

Option B is wrong. There is no requirement to give advance notice of the application to the bank. The bank will be served with the interim TPDO once made and this will effectively freeze the account until final determination of the application.

Option C is wrong. Advance notice is not required to be given to either the judgment debtor or the bank for the reasons above.

Option D is wrong. Advance notice is not required to be given to either the judgment debtor or the bank for the reasons above.

Question 27

A claimant successfully obtains judgment against the defendant. However, the defendant claims that they do not have sufficient funds to satisfy the judgment. The claimant would like to apply to court for an order to obtain information from the defendant.

Which of the following best describes where the hearing of the application is likely to take place?

A-The County Court hearing centre for the area where the defendant resides or carries on business.

B-Any County Court hearing centre selected by the claimant on the application notice.

C-The County Court Information Centre, which is based in Salford.

D-The High Court district registry for the area where the defendant resides or carries on business.

E-The County Court hearing centre for the area where the claimant resides or carries on business.

Answer 27

Option A is correct. The hearing will normally take place in the County Court hearing centre nearest to where the debtor (here, the defendant) resides or carries on business.

Option B is wrong, the judgment creditor (here, the claimant) cannot select any County Court hearing centre.

Option C is wrong, this is a fictional court.

Option D is wrong because it refers to the High Court district registry rather than the County Court hearing centre.

Option E is wrong because it refers to the area where the claimant resides or carries on business, rather than the defendant.

Question 28

The claimant has obtained judgment for £75,000 against the defendant. The defendant, who is a self-employed joiner, has the following assets: a van and tools for his trade, a house which he has inherited, a workshop which he rents to store wood and materials and a building society account in which he has £2,500.

Which single method of enforcement is likely to be the most effective for the claimant?

A-An attachment of earnings order.

B-A charging order against the workshop.

C-A charging order against the house.

D-A taking control of goods order for the van and tools.

E-A third-party debt order over the building society account.

Answer 28

Option C is the best answer as the house is solely-owned by the judgment debtor and, on the facts, not subject to a mortgage.

Option A is wrong because the defendant is self-employed and attachment of earnings orders only apply to those who are employed.

Option B is wrong because the warehouse is rented so cannot be enforced against.

Option D is wrong because the defendant requires the van and tools to trade.

Option E is not the best answer. Whilst a third party debt order could be obtained over the building society account, the small amount of money means that it is not the single most effective asset to enforce against.

Question 29

The Claimant issued proceedings against the defendant for breach of contract. The trial has taken place and judgment has been delivered by a District Judge in the County Court. The judgment was wholly in favour of the Claimant on all issues of liability and quantum. The Defendant is unhappy with the decision of the District Judge and wants to appeal it.

Which one of these following options best describes the Appellant’s grounds of appeal?

A-An application for permission to appeal may be made to the District Judge at the hearing at which judgment was delivered or by way of application to the appeal court.

B-Permission to appeal will only be given where the court considers that the appeal would have a real prospect of success or some other compelling reason why the appeal should be heard.

C-The Appellant has an automatic right of appeal to the Circuit Judge against all decisions of the District Judge in the County Court and need not make an application for permission to appeal.

D-The appeal court will usually deal with a request for permission to appeal on paper, without a hearing though the Appellant may request an oral hearing.

E-The proper destination of the Appellant’s appeal is a Circuit Judge. The grounds of appeal are that the decision of the County Court is wrong or that it is unjust.

Answer 29

Option E is correct. It is the only answer which relates to the grounds of the appeal itself rather than grounds for permission to appeal, procedural matters or destinations of appeal.

Option A is wrong, although it is an accurate statement it relates to the procedure for making the application not the grounds on which it is made.

Option B is wrong it sets out the grounds on which the court may grant permission to appeal.

Option C is wrong there is no automatic right of appeal in these circumstances.

Option D is wrong, although an accurate statement it relates to a procedural matter as to how an application for permission to appeal may be made, rather than the grounds on which it may be made.

Question 30

A solicitor makes an application on behalf of a claimant for summary judgment against a defendant. At the hearing, the District Judge (DJ) refuses to hear from the solicitor, stating that the application clearly has no merit as the defence is not certain to fail. The DJ dismisses the application.

Does the claimant have grounds for appeal?

A-No, because the DJ applied the correct test for summary judgment and there was nothing irregular in his conduct of the hearing.

B-Yes, because although there was nothing irregular in his conduct of the hearing the DJ applied the wrong test for summary judgment.

C-Yes, because the DJ applied the wrong test for summary judgment and his conduct of the hearing was procedurally irregular.

D-No, because although the DJ’s conduct of the hearing was procedurally irregular, he applied the correct test for summary judgment.

E-Yes, because although the DJ applied the correct test for summary judgment his conduct of the hearing was procedurally irregular.

Answer 30

Option C is correct. An appeal will be allowed where the decision of the DJ was wrong or unjust because of a serious procedural (or other) irregularity. The DJ applied the wrong test for summary judgment. The correct test is whether the defence has a real prospect of success and not whether it is certain to fail. Further, the DJ’s conduct of the hearing was unjust because of a (serious) procedural irregularity in that he would not hear from the claimant’s solicitor before dismissing the claimant’s application.

Option A is wrong for the reasons given above.

Option B is wrong because the conduct of the hearing was procedurally irregular for the reasons given above.

Option D is wrong because the DJ did not apply the correct test for summary judgment for the reasons given above.

Option E is wrong because the DJ did not apply the correct test for summary judgment for the reasons given above.

Question 31

Quick Q:

The Claimant bought a property for £1.6 million from the Defendant. The Claimant issued a claim against the Defendant for misrepresentation. The Claimant alleged that the Defendant failed to disclose a significant dispute with their neighbour. The Claimant was unsuccessful at the trial in the County Court. The Claimant is unhappy with the judgment and wants to appeal the decision.

Which of the following statements best describes when permission to appeal will be granted?

A- Permission to appeal will only be provided where the court believes that the appeal has a real prospect of success or there is some other compelling reason why it should be heard.

Answer 31

Option A is correct. As this is the first appeal, permission to appeal will only be provided where the court believes that the appeal has a real prospect of success or there is some other compelling reason why it should be heard.

Option B is wrong. This is not an appeal to the Court of Appeal or the Supreme Court.

Option C is wrong. Permission to appeal is not always required from the Court of Appeal.

Option D is wrong. Permission to appeal can be granted in other circumstances.

Option E is wrong. Permission to appeal can be granted in other circumstances.

Question 32

Summary judgement test

Answer 32

The test is whether the defence has a real prospect of success [and not whether it is certain to fail.]

Question 33

A solicitor is acting for a client in a contract dispute in the County Court. At trial, the case is decided in favour of the opposition and the client wishes to appeal this decision. Oral permission for the appeal was granted by the trial judge, immediately following the judgment, and the client is now seeking advice on what arguments they might be able to make in support of the appeal.

Which ONE of the following best describes the ground of appeal that the client could rely on when bringing the appeal?

A-That there is a compelling reason for the appeal to be heard.

B-That the appeal has real prospects of success.

C-That the trial judge’s decision was wrong or unjust.

D-That permission has been given to appeal.

E-That this is a first appeal.

Answer 33

NEED TO THINK IS IT GROUNDS TO APPEAL OR PERMISSION TO APPEAL

Option C is the correct. The appellant will have to persuade the appeal court that the decision of the lower court was either wrong (as at law, interpretation of facts or exercise of discretion); or, unjust because of a serious procedural irregularity in the proceedings of the lower court.

Options A and B are wrong because they are the grounds for permission to appeal.

Option D is wrong because permission is required before grounds of appeal can be lodged.

Option E is wrong because whether the appeal is a first or second appeal is considered at the permission stage.

Question 34

Permission to appeal: grounds

Answer 34

1.Appeal has a real prospect of success
2. There is some other compelling reason why it should be heard (important question of law or general policy at stake).

If the appeal is to the Court of Appeal or Supreme Court, the case must also raise an important point of principle or practice.

Second appeal = Second appeals are much rarer and permission is required from the Court of Appeal itself
before the judges will hear the case.

Question 35

Permission to appeal: procedure

Answer 35

No right to appeal:
*In most cases, the request will be made at the end of the trial and the judge will decidewhether to grant permission.
*If the request is unsuccessful, or none is made, then the party can apply for permission from the appeal court itself. The appeal court will usually deal with such a request on paper, without a hearing. However, in the Court of Appeal, the judge must list the matter for an oral hearing no later than 14 days after the relevant direction if they decide that
the application cannot be fairly determined without the presence of the parties.

The requirement to obtain permission acts as a deterrent to those litigants who refuse to

Question 36

Transmission of the fax, when is it served?

Answer 36

If the transmission of the fax is completed after 4.30pm, the deemed date of service is the next business day,

Question 37

What is a business day?

Answer 37

A‘business day’ is any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day.