Topic 16- Appeals and Enforcement Flashcards
Is permission required in appeals from the County Court or High Court?
Yes, the appellant requires permission to appeal
Where does an appellant apply for permission when making an appeal?
They can apply for permission to the lower court at the hearing at which the decision was made
OR
Can apply to the appeal court using an appeal notice
In appeals relating to contempt proceedings, what is the application for appeal procedure?
Must apply for permission to the Divisional Court; single judge of the High Court, or the Court of Appeal
Within 28 days of the decision
How is an application for permission to appeal determined in an appeal court (apart from CoA)?
The appeal court will determine the application on paper without an oral hearing
What should the appellant do if the appeal court refuses permission to appeal without a hearing?
The person seeking permission may request the decision to be reconsidered at an oral hearing
Within 7 days after refusal
What can the appellant do if the appeal court refuses permission without a hearing, and considers the application is totally without merit?
A judge may make an order that the person seeking permission may not request the decision to be reconsidered at an oral hearing
Therefore, the appellant cannot do anything
What is the permission to appeal process in the Court of Appeal?
The CoA will determine the application on paper without an oral hearing
However, they may directed that the application be determined at an oral hearing, which must be made within 14 days from the direction
Can the Court of Appeal decide on which areas of the appeal should determined?
Yes, when determining the application to appeal, the CoA may identify any issues and focus its submissions on those areas
In the first appeal, what is the test for granting the permission to appeal?
The court considers that the appeal would have a real prospect of success
OR
There is some other compelling reason for the appeal to be heard
When granting permission to appeal, what may the court do to limit it?
The court may limit the issues to be heard
AND
Make them subject to conditions
Which court do all second appeals go to?
The Court of Appeal
When determining a second appeal, what is the test the CoA uses when determining permission?
There must be a real prospect of success
AND
It must raise an important point or principle or practice
OR
There is some other compelling reason for the CoA to hear it
Where an appellant seeks permission from the appeal court, what must the appellant do?
They must file an appellant’s notice at the appeal court within 21 days of the decision of the lower court
The notice must be served on each respondent as soon as practicable, or within 7 days of filing
In what specific claim does the appellant not require serving an appellant’s notice to the respondent when seeking permission to appeal?
Where the appellant is seeking to appeal a decision to refuse a grant of an interim injunction
They do not need to serve appellant’s notice on the respondent
Does an appellant need to serve notice on the respondent when seeking permission to appeal refusal to grant an interim injunction?
No
Does a respondent NEED to file and serve a respondent’s notice?
No, they only may file and serve a respondent’s notice
However, there are exceptions
When MUST a respondent file and serve a respondent’s notice to appeal?
Where they are seeking permission to appeal from the appeal court
OR
Wishes to ask the appeal court to uphold the decision of the lower court for different reasons given by the lower court
Must be filed within 14 days from the date where permission to appeal was given by the lower court
Can transcripts from the previous proceedings be obtained in the appeal?
Yes, the party may request that an official transcript of the judgment of the lower court is obtained for the purposes of an appeal at public expense
However, there are requirements for this
What are the requirements for a court to obtain the transcript of the lower court judgment at appeal, at the public expense?
They must be satisfied that the requesting party is in poor financial circumstances (so they cannot obtain it themself)
AND
It is necessary in the interests of justice for it to be obtained
Can the parties vary the time limit for filing an appeal notice?
Yes, the party must making an application to vary the time limit to the appeal court
Can the parties agree to extend the date for filing an appeal notice?
NO
They must make an application to the appeal court to vary the time limit
Will an appeal stay the decision or order of the lower court?
No, it will not stay the decision or order
Unless the appeal court or lower court orders otherwise
What are the powers of an appeal court?
Can affirm, set aside or vary any order or judgment made by the lower court
Can refer any claim or issue for determination by the lower court
Can order a new trial or hearing
Can make orders for payment of costs or interest
Does the appeal court have greater powers than that of the lower court?
No, they have all the same powers of the lower court
If an appeal court refuses or dismisses an appeal, and they consider the appeal is totally without merit, what must the appeal court do?
They must record the fact that the appeal is totally without merit, and consider whether it is appropriate to make a civil restraint order
What will the hearing of an appeal usually be?
It will be limited to a review of the decision of the lower court
When will a re-hearing of a decision be ordered in an appeal court?
Where it would be in the interests of justice to hold a re-hearing, instead of a review
Must also look at the facts of the case
Will an appeal court receive oral evidence or fresh evidence?
No, unless they order otherwise
Must satisfy the Ladd v Marshall conditions
When will the appeal court allow an appeal?
Where the decision of the lower court was wrong
OR
Unjust because of a serious procedural or other irregularity in proceedings in the lower court
What are the circumstances an appeal court must look at when deciding whether to hold a re-hearing, instead of a review?
It is in the interests of justice
Where there has been a serious procedural or irregularity in the lower court, making it unjust
What is fresh evidence?
Evidence which was not before the lower court
What are the three grounds for admitting fresh evidence in appeal?
The new evidence could not have been obtained with reasonable diligence for use at trial
The evidence must have an important influence on the result of the case
The evidence must be apparently credible
COURT MUST ALSO LOOK AT THE OVERRIDING OBJECTIVE
What is likely to happen as a result of the admission of fresh evidence on appeal?
The appeal court will likely order a re-hearing, rather than a review
An appeal from a district judge in County Court will usually go to which destination?
A circuit judge in County Court
OR
A High Court judge
An appeal from a circuit judge in County Court will usually go to which destination?
A High Court Judge
When will an appeal from the County Court go to the Court of Appeal?
Where there has been a decision in contempt proceedings
When will an appeal from High Court go to the Supreme Court?
Where there has been a decision in contempt proceedings
Where do decisions in the High Court usually go?
Court of Appeal
Where a party attempts to file an applicant’s notice to the wrong jurisdictional court, what should the court do?
The court officer will notify the party in writing that the appeal court does not have the jurisdiction
If a claimant wishes to appeal a decision made by a District Judge in County Court:
Do they need permission?
What type of hearing will it be?
Yes, they need permission from the Circuit Judge
It will likely be a review (unless in the interests of justice for a re-hearing)
Who is the judgment creditor?
This is the person who has obtained or is entitled to enforce a judgment or order
Who is the judgment debtor?
This is the person against whom a judgment or order was given or made
What is the effect of defaulting payment in just one instalment of a fine?
It will be taken as if default has been made in payment of the whole fine
How does a judgment creditor enforce a HC judgment or CC order?
They must apply to the High Court for an order transferring the proceedings for enforcement
When will the High Court transfer jurisdiction to the County Court for jurisdiction purposes?
HC may transfer to the CC as the CC has exclusive jurisdiction in making an Attachment of Earnings order
What is the maximum enforcement sum the County Court can enforce?
£600
If more than £600, the County Court must transfer jurisdiction to the High Court
If a judgment or order is made in favour of a non-party, how do they enforce it?
They can enforce it using the same methods as if they were a party
Can a party enforce a judgment or order using multiple methods?
Yes, they can use multiple enforcement methods
If a judgment or order is set aside, will it still be enforced?
No, any enforcement will cease to have effect
What are the four methods of enforcing money judgments?
Writ of control / warrant of control
Third party debt order
Charging order
Attachment of earnings order
Can the court decide to enforce a judgement on their own?
No, only the creditor can make the decision to enforce judgment
Is enforcement of a judgment or order available pre-action?
No of course not
What should the judgment creditor do if they have no available information regarding the judgment debtor’s means?
The creditor should apply for an order requiring the debtor to attend court to provide information about their means, and any other matters
How does a judgment creditor apply for an order for debtor to attend court?
They must make an application without notice, and issue it in the court which made the judgment or order
Can an application for an order for a debtor to attend court be made without a hearing?
Yes, it can be dealt with without a hearing
When an order for a debtor to attend court is made, what happens?
The debtor must attend court
And produce the court documents described in the order
Answer any questions on oath
Who may ask the questions in a debtor information hearing?
The judgment creditor or his representative may attend and ask questions when before a court officer
HOWEVER
They MUST attend if before a judge
If a debtor information hearing is before a judge, does the creditor have to attend?
YES, he must attend the hearing and conduct the questioning
What happens if a debtor fails to attend the information hearing or comply with the order?
The court will refer the matter to a High Court judge
The judge may then hold the person in contempt of court
In what situation is a third party debt order made?
Where a judgment debtor is owed money by a third party, the judgment creditor can obtain an order that the third party should pay the creditor directly
Is it possible to obtain a third party debt order against the debtor’s spouse?
No
How does a creditor obtain a third party debt order?
They must make an application without notice, and issue in the court that made the judgment or order
What must the application for a third party debt order contain?
Confirmation that the third party is within the jurisdiction
AND
Owns the money to the credit of the judgment debtor
What is a charging order?
An order where the the property of the judgment debtor may be secured, in order to pay the judgment creditor
What are the four types of charging orders?
Charging order on land
Charging order on securities
Charging order over a debtor’s interest in a fund
Charging order over judgment debtor’s interest in partnership property
What is a charging order on land?
This provides the creditor with security equivalent to a mortgage over the land
However, it will be over the beneficial interest of the land, not the land itself
How does a creditor apply for a charging order?
They must make an application without notice
The application notice must contain the relevant information, and be verified by a statement of truth
What is a writ and warrant of control?
This is where the judgment creditor can take control and sale of the judgment debtor’s goods
I.e, seizure and sale of the debtor’s goods to satisfy the judgment debt
When will a writ or warrant being issued require the court permission?
Where 6 years or more have elapsed since the date of judgment
Where any change has taken place to the parties
What must the application for a writ and warrant include?
It must identify the judgment or order to which the application relates, and state the debt due
What is a controlled goods agreement?
This is where an enforcement agent may take control of goods
The debtor agrees terms for the repayment of the debt
What is the minimum amount of debt for the County Court to make an attachment of earnings order?
£50
Where must an application to the County Court for an attachment of earnings order be made?
The Civil National Business Centre
What must be included in an attachment of earnings application?
A certificate of the amount of money remaining under the judgment
What is an attachment of earnings order?
Where the judgment debtor’s employee sends the debtor’s earnings directly to the creditor to pay off the debt
Where is permission to appeal not required?
A committal order made in the County Court or High Court
Refusal to grant habeas corpus
Secure accommodation order
When will the time limit to apply for appeal run from?
It will begin running from the date the decision is given
Can a third party debt order be made against a bank?
Yes
But not against an overdraft
Who will a debtor information hearing be carried out by?
It will be carried out by a court officer, unless the court orders it should be carried out by a judge
If the sum sought to enforce is £5000 or more, where will it be enforced by writ of control?
In the High Court
Where will a second appeal always be made to?
The Court of Appeal
When a respondent wishes to appeal the court allowing for an appeal, where must they may an appeal?
As this is a second appeal, it must be made to the Court of Appeal
What is the only reason why a respondent should serve a respondent’s notice?
Where they wish to make a cross-appeal
OR
Uphold the lower court’s decision for DIFFERENT REASONS
If a respondent to an appeal wishes to apply to the appeal court to uphold the original decision, do they have to file and serve a respondent’s notice?
No, they don’t have to
Judgment shall be enforced in the High Court only if the sum is more than…
£5000
Judgment shall be enforced in the County Court only if the sum is less than…
£600
Can a third party debt order be made against a bank account?
Yes
Can a third party debt order be made against a bank account in the joint names of a debtor and his wife?
No, this is not possible
Can a High Court make an attachment of earnings order?
No, only the County Court
Can a third party debt order be held against a joint account?
No
