Trial, Appeals and Enforcement of Money Judgments Flashcards
What can a party do if they have concerns about whether a witness is going to attend court to give evidence?
The party can apply for a witness summons
What happens if the court accepts the application for a witness summons?
They will serve the witness with a summons, alongside an offer for the party requiring the witness’s attendance to pay that witness’s expenses to attend court or compensation for loss of working time
What can a witness summons require of a witness?
Require a witness to attend court or to produce documents for the court’s benefit
What happens if a witness summons is served by the court but is not accompanied by an offer to compensate for expenses or lost time?
The summons is invalid
When must a witness summons be served?
At least seven days before the court date
What happens if a witness fails to attend court following a summons?
They could face a fine or even be held in contempt of court, which means that someone has unfairly influenced a court case
When does a party have to complete a pre-trial checklist (listing questionnaire)?
For fast track and multi track trials
When should the pre-trial checklist/listing questionnaire be filed at the court?
Eight weeks prior to trial date
What should the pre-trial checklist/listing questionnaire provide the court with an overview of?
- whether the parties have complied with all of the directions issued by the court
- whether there is a need for any additional last-minute directions
- who will be giving oral, witness and expert evidence
- whether any expert evidence is being relied upon, and if so whether there is more than one expert
- whether the party themselves a solicitor or barrister will be presenting the case at trial
- whether the time estimate for the trial is still accurate
What will a judge do on reviewing pre-trial checklist?
They will decide whether any further directions are necessary or whether the matter requires pre-trial review
What is a pre-trial review?
Specific hearing that takes place around 10 weeks prior to the trial in multi-track trials that are scheduled to take place over a number of days.
Court will check that the parties have complied with all orders and directions, issue a direction for all parties to file a trial bundle and set the trial timetable
What is the trial timetable?
Detailed schedule for a trial that sets out time limits for each party to set out their case and for the examination and cross-examination of witnesses
What is trial bundle?
Indexed and paginated file of documents that contains all documents which are to be referred to by any party at trial.
There is only trial bundle for the case.
What is in the trial bundle?
Should be all documents which every party to proceedings is seeking to rely on.
How are documents within the trial bundle ordered?
They are placed in order of oldest documents first and most recent at the bottom.
Classes of documents are typically separated for ease of reference
Who bears responsibility for preparing the trial bundle?
The claimant
How many copies of the trial bundle are there?
Claimant should prepare enough for all parties, the court and all witnesses
Claimant should make sure all original copies are available to for trial
What should be included in the trial bundle under the CPR?
- the claim form and all statements of case
- an agreed case summary/chronology of key events in the matter/skeleton arguments
- any requests for further information and replies
- any witness statements
- any notices of intention to rely on hearsay evidence
- experts’ reports any responses to questions raised with those experts
- directions orders
- any other necessary documents
When does the trial bundle have to filed with the court?
No earlier than seven days before trial and no later than three days before trial
What stages will happen at a typical civil trial?
- opening speeches
- witnesses will be called
- closing speeches
- judgment
What will happening at the opening speech stage of a trial?
The claimant’s representatives will give a brief speech outlining the facts and outstanding issues in dispute
What will happen at the witness stage of a trial?
Claimant’s witnesses will be called first.
Each witness will be subject to:
- examination in chief (witness statement)
- cross-examination
- re-examination
For examination in chief lawyers will ask open and non-leading questions and leading questions for cross-examination
What happens at the closing speeches stage of a trial?
Each party representatives will sum up their case. Defendant will go first then claimant
Is there an automatic right to appeal a decision made by a court?
No - permission must be sought
When will permission to appeal be granted?
Where:
- the decision of the lower court was wrong or
- the decision was unjust because of serious procedural or other irregularity in proceedings
What is the test in the CPR for appeals?
- the appeal has a real prospect of success
OR
- there is some other compelling reason why the appeal should be heard
What is the time limit for appealing a decision from the county court or high court?
21 days from original decision
What is the time limit for appealing a decision from the appeal court?
28 days from original decision
Where will a decision made by a district judge in the county court be heard?
Circuit judge in the county court
Where will a decision made by a circuit judge in the county court be heard?
High Court Judge in the High Court
Where will a decision made by a Master in the High court be heard?
High Court Judge in the High Court
Where will a decision made by a High Court Judge in the High court be heard?
Court of Appeal
What is oral examination for enforcing money judgments?
Way for claimant to work out whether it is worthwhile taking enforcement action against defendant and if so what method of enforcement would be most suitable against the specific defendant
What is the procedure for oral examination for enforcement?
The claimant completes notice of application accompanied by order, which is subject of the enforcement and the amount owed
Defendant is ordered to attend court to be questioned on oath by court officer.
Information obtained will then be passed back to claimant, who can then make a decision on how to proceed
What sort of questions would likely be asked of the defendant at oral examination for enforcement?
- employment status and income
- details of any property owned
- details of any other assets of financial value (eg cars, other property)
- details of bank accounts and the amounts that are contained in them
What methods of enforcement are available to a claimant?
- taking control of good orders
- third-party debt orders
- charging orders
- attachment of earnings orders
What is a taking of control of goods orders?
Allows the defendant’s goods or assets to be seized then sold at auction to pay the debt owed to the claimant
When is a taking control of goods order appropriate?
Where the defendant owns assets that are moveable and can be picked up by an enforcement officer and sold off later
What is the taking of control order called in the High court and County Court?
- High court = writ of control
- County court = warrant of control
What will happen once a taking of control order has been granted by the relevant court?
An enforcement officer will take steps to attend the defendant’s premises and seize goods
Where should the claimant apply for taking control of goods order where the debt is up £600?
County court
Where should the claimant apply for taking control of goods order where the debt is between £600 and £5,000?
Apply either to County Court or to High Court for debts
Where should the claimant apply for taking control of goods order where the debt is over £5,000?
The High Court
What is a third party debt order?
A third party debt order is an order made against a third party, such as bank or building society for them to pay the debt owed to defendant directly
What are the limitations to a third party debt order?
Can only be given where the source of the funds is owed to the defendant and defendant alone ie not a joint bank account
What is a charging order?
Order that effectively secures the amount of the judgment debt against land held by defendant. When defendant sells that particular asset, the judgment debt will be paid to the claimant out of sale proceeds
What three stages are there for securing payment for a judgment debt?
- interim charging order
- final charging order
- order for sale
What happens at the interim charging order stage for securing payment for a judgment debt?
- the claimant files an application for charging order with supporting evidence and a draft interim charging order
- provided that documentation is in order, a court officer will grant an interim charging order without a hearing
- claimant must then serve the interim charging order, the application and any supporting evidence on the defendant within 21 days
- the defendant has 14 days to respond and request that the matter be referred for an in-person hearing. If the defendant does not respond, the court will automatically
What will happen at the final charging order stage for securing payment for a judgment debt?
If D objects to the interim charging order and requests a hearing, they must file and serve a statement explaining their reasons for objection within 28 days of the date of the interim charging order
- the matter is then referred to a judge who will hold an in-person hearing where both parties will submit their arguments. The judge will then make a decision on whether to grant a final charging order or dismiss the interim charging order
What’s happens at the order for sale stage for securing payment for a judgment debt?
The can make a further application for an order that forces the defendant to sell the property which has the final charge attached to it.
If the court makes the order for sale, D must sell the property with the proceeds of sale being used to settle any charges against the title of the land in date order, earliest first
When are charging orders not suitable?
When the land is already subject to multiple charges so important to check if the land is subject to any charges before applying for charging order
What are attachment of earnings orders?
Requires D’s employer to pay a specific sum from D’s wages directly to the court which then passes on to the claimant in part satisfaction of the judgment debt until it is paid in full
Where can an attachment of earnings order be sought?
Only in the County court
What consideration should be given with regards to opting for an attachment of earnings order?
- is D employed
Is D likely to lose his job in the near future
How can a judgment be enforced out of jurisdiction?
By registering the judgment with the country in which the defendant holds their assets then using the country’s local methods to enforce
What is the procedure for enforcing judgments in Scotland and Northern Ireland?
- obtaining a certificate of a High court or a county court money judgment
- within six months of the date of issue of the certificate, the claimant must make an application to foreign court to register the judgment
- the judgment will then be registered in the jurisdiction and can be enforced using one of the methods allowed by either Scottish or Northern Irish law
When can a judgment be enforced in a Commonwealth country?
Judgment must be:
- final (ie not subject to appeal)
- for a specific sum
- registered within six months if using enforcement method from county court
- registered within 12 months if using enforcement method for High court judgments
How is judgment enforced in an EU country?
Claimant will have to register judgment with relevant country and then enforce using one of the methods available in that country
