Trial, enforcement, and appeals

Question 1

Consent order

Answer 1

Once a matter has been settled between the parties, it is usual for that settlement to be recorded in a consent order. This has the effect of a ‘normal’ court order but indicates that the parties agree the terms it sets out, so that there is no need for the court to hear arguments from both sides

Question 2

Tomlin order

Answer 2

A type of consent order
A Tomlin Order is made up of 2 parts; the first part is the public part and the second, the confidential part that contains the detail of the agreement reached between the parties (called ‘schedule’).
Any direction for payment of money out of court or the payment and/or assessment of costs must be contained in Part 1 (because they require action of the court)
A Tomlin Order is generally used when either:
the parties wish for the key settlement terms to be confidential; and/or
when the agreed settlement terms go beyond those that the court could generally order as part of the proceedings.

Question 3

Do consent or tomlin order need court’s approval?

Answer 3

YES

Question 4

How to record a settlement before proceedings are issued?

Answer 4

Settlement agreement

Question 5

Pre-trial checklist/listing questionnaire

Answer 5

The pre-trial check list provides the court with another opportunity to:
check that the case management directions previously given have been complied with and that the case is ready for trial;
give any further necessary directions; and
fix a date for trial (or confirm a date that has already been fixed).
The pre-trial check list provides the court with another opportunity to:
check that the case management directions previously given have been complied with and that the case is ready for trial;
give any further necessary directions; and
fix a date for trial (or confirm a date that has already been fixed).

Question 6

Guidance on directions the court must give on listing includes (PD29):

Answer 6

the court will fix the trial date (or confirm the date already given);
the court will give a time estimate for trial; and
the court will fix the place of trial.

Question 7

Trial bundle - who makes them and how many do you need? When do you need to file them?

Answer 7

The purpose of a trial bundle is to ensure that all relevant material is before the court at trial so that the trial proceeds smoothly and expeditiously.
It is the responsibility of the claimant to file the trial bundle with the court no more than seven days and no less than three days before the trial begins.
As well as filing a copy at court, the party filing the trial bundle should supply identical bundles to each of the parties to the proceedings and a further set for use by the witnesses while giving evidence.

Question 8

If you settle and don’t notify the court - what are the consequences?

Answer 8

Cost penalties

Question 9

Trial - what happens and in what order?

Answer 9

Claimant’s opening speech
Claimant’s case (witnesses and evidence)
Defendant’s case (witnesses and evidence)
Defence closing speech
Claimant’s closing speech
Judgments and final orders

Question 10

Disposal hearing

Answer 10

During it damages are assessed

Question 11

Drawing up and service of judgments/costs orders

Answer 11

‘Drawing up’ an order means setting the order out in the formal document to be sealed by the court.
The order will by drawn up by the court, unless the court orders a party to draw it up or a party (with the permission of the court) agrees to draw it up or the court dispenses with the need to draw it up or it is a consent order (CPR 40.3). If an order is to be drawn up by a party, the party drawing the order up is required to file it no later than 7 days after becoming responsible for doing so, in order that the court can seal it.
They must also file sufficient copies for service on themselves and the other parties at the same time and, once sealed, the court will serve the sealed order on everyone
A consent order is drawn up by the parties.
If the party responsible for drawing up the order fails to do so within the 7 day time limit, any other party may do so instead.

Question 12

When does a judgment/order take effect + when does interest start to run and how much is the interest

Answer 12

A judgment or order is effective from the date it is given or made, not served
interest starts to run on the amount of the judgment debt from the date on which the judgment is given
The rate of interest on judgment debts is set at 8% per annum
The parties have a time limit of 14 days in which to comply with a judgment or order for the payment of an amount of money, unless otherwise specified by the court

Question 13

Debt respite scheme

Answer 13

The Scheme allows an individual debtor (not a company) to approach a debt advice provider (which might be a local authority) to ask for ‘breathing space’ of 60 days on the basis that they are unlikely to be able to repay their debts. If the debt advice provider considers it appropriate then they can start a breathing space via the insolvency service, which then notifies the debtor’s creditors

Question 14

Enforcement proceedings - what are they

Answer 14

Enforcement proceedings are the steps taken post judgment by the successful party in order to obtain payment from the unsuccessful party, who can now be described as the judgment debtor.

Question 15

Investigating the opponent’s means

Answer 15

the judgment creditor can apply to the court for an order to obtain information from the judgment debtor. This requires the debtor to attend court and give information directly about their assets.
The order must contain a ‘penal notice’, stating:
‘If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized’ (CPR 71.2(7))
Unless the court orders otherwise, the order to attend court must be served personally on the person ordered to attend court not less than 14 days before the hearing
The judgment debtor must then attend court and produce any documents referred to in the order, and answer any questions asked of them on oath

Question 16

Methods of enforcement (for movable assets, debts owed by others, real property, earnings, nature of the debtor’s assets is unclear)

Answer 16

Movable assets - Taking Control of Goods
Debts owed by others - third party debt order
Real property - charge
Earnings - attachment of earnings order
Nature of the debtor’s assets unclear - order to obtain information from the judgment debtor

Question 17

Taking control of goods: definition, exempt goods, which court, how to apply for it

Answer 17

This procedure allows an enforcement officer (‘EO’), which includes those who were formerly known as bailiffs and High Court sheriffs, to seize a judgment debtor’s goods and sell them in order to use the proceeds of sale to satisfy the judgment debt and expenses.

Exempt goods: tools of the judgment debtor’s trade which are exempt, but only to an aggregate value of £1,350; and basic domestic items, such as clothing, bedding, furniture and essential household items.

Taking control of goods - which court?
Debt sum up to £600 – Must use County Court
Debt sum between £600 and £5000 – Can use either High Court or County Court
Debt sum more than £5000 – Must use High Court

How to apply for TCG
High Court – Writ of control
Country Court – Warrant of control
The writ or warrant of control is addressed to the EO and it is this document that entitles the EO to seize and sell the judgment debtor’s goods to raise funds to satisfy the judgment debt.

TCG - 3 stage procedure
(1) Giving notice to the judgment debtor of enforcement at least 7 clear days before taking control of the goods, but they have 12 months after the notice to take the goods
(2) Entering premises and securing the goods + giving a notice about what is happening to the debtor
(3) sale of goods (sum to creditor, and surplus to debtor)

Question 18

Controlled goods agreement

Answer 18

An alternative to removing goods at this stage is for the EO to enter into a controlled goods agreement with the judgment debtor.
This is an agreement whereby the judgment debtor is permitted to retain custody (and use) of the goods, despite the EO taking control of them, pending payment of the debt.

Question 19

3rd party debt order

Answer 19

This procedure is appropriate when there is a ‘debt due or accruing due’ to a judgment debtor by a third party within the jurisdiction.
Note however that a third party debt order cannot be obtained against a bank account in the joint names of the debtor and spouse.
the court may make an order requiring a third party to pay to the judgment creditor some or all of a debt owing to the judgment debtor by the third party, in satisfaction of the judgment debt and the judgment creditor’s costs of the application

Question 20

Charging Orders on land and certain securities

Answer 20

A charging order is a form of charge taken over land (or other specified assets) which secures a judgment debt. It therefore does not, of itself, produce any money.
Once the charging order is made final it will generally remain in place until the property is sold by the debtor, at which point the debt will be paid using the sale proceeds and the charge removed as part of the process of selling the property.

Question 21

Attachment of earnings order

Answer 21

As mentioned earlier, this method of enforcement is available only in the County Court, so if the judgment creditor wants to use it, the judgment (ie debt) must be transferred to the County Court.
It is available where the judgment debt or amount outstanding is not less than £50. If the order is obtained
a. The judgment debtor’s salary will have deductions made from it by their employer.
b. These deductions will be paid into court for onward transmission directly to the judgment creditor.
This method of enforcement is most relevant where a debtor does not have substantial assets but does earn a salary from employment.

Question 22

Insolvency proceedings

Answer 22

A petition for bankruptcy against an individual can be issued when the judgement debt against them is more than £5,000.
A petition to wind up a company can be issued when the judgment debt against it is more than £750.

Question 23

Statutory demand

Answer 23

This precursor to insolvency proceedings being commenced is a demand in a simple standard form. So long as the debt remains unpaid for a period of 21 days after service of the demand, the debtor is at risk of the court presuming that he/it is unable to pay its debts and is therefore insolvent

Question 24

Grounds of appeal

Answer 24

the appeal court will allow an appeal where the decision of the lower court was either:
Wrong; or
Unjust because of a serious procedural or other irregularity in the proceedings in the lower court

Question 25

Will the appeal court have access to new evidence and will hear the evidence live?

Answer 25

NO

Question 26

When is a decision of the lower court wrong?
- appeals

Answer 26

A decision can be wrong in this context due to either:
an error of law; or
an error of fact; or
an error in the exercise of the court’s discretion

Question 27

When is a decision of the lower court injust? - appeals

Answer 27

The irregularity must be ‘serious’ and it must have caused the lower court’s decision to be unjust. However, succeeding on this ground does not depend on the decision of the lower court being wrong, so it may apply even if the same decision would have been reached without the irregularity.

Question 28

Do you need permission to appeal, if so how do you apply for it?

Answer 28

The appeal system involves a ‘permission’ stage – before an appeal court will decide whether either of the grounds for appeal is established, the party that wants to appeal needs to obtain permission to appeal
2 options
Apply for permission from the lower court at the time when the decision to be appealed is made - this saves costs
Make the application to the appeal court later - this gives more time to prep (you can pursue this option even if applied unsuccessfully to the lower court)

Question 29

How the application for permission will be deal with

Answer 29

CA
On paper, unless the judge is of the opinion they cannot fairly determine the application on paper, then an oral hearing within 14 days

County or High
If paper application refused, you can apply within 7 days for reconsideration at an oral hearing, if then refused then appeal impossible

Question 30

Time limit for obtaining permission/appeal + how do you get an extension of time?

Answer 30

21 days of the date of the lower court’s decision
If a party has a good reason for seeking a longer period in which to appeal it can apply to the lower court for an extension of time
A delay in formally drawing up a judgment or order will not delay time running for the purpose of making an appeal

Question 31

Test for granting permission - first appeal

Answer 31

Permission will only be granted where the court considers:
that the appeal would have a real prospect of success (note the similarity to the test for summary judgment); or
that there is some other compelling reason why the appeal should be heard

Question 32

Test for granting permission - second appeal

Answer 32

The Court of Appeal will not give permission for a second appeal to go ahead unless it considers that:
the appeal would have a real prospect of success and raise an important point of principle or practice; or
there is some other compelling reason for the Court of Appeal to hear it

Question 33

Does an appeal operate as a stay of execution on the order of the lower court?

Answer 33

NO

Question 34

Routes of appeal

Answer 34

Appeal from County Court District Judge ->appeal to County Court Circuit Judge.
Appeal from County Court District Judge dealing with non-insolvency proceedings brought pursuant to the Companies Acts ->appeal to High Court.
Appeal from County Court Circuit Judge -> appeal to High Court Judge.
Appeal from High Court Master -> appeal to High Court Judge.
Appeal from High Court Judge ->appeal to Court of Appeal.

Question 35

What orders can the appeal court make?

Answer 35

In relation to an appeal, the appeal court has all the powers of the lower court, so it could replace the lower court’s judgment with its own judgment