Trial / Enforcement / Appeals

Question 1

Be aware of all these steps that parties may need to take

Answer 1

• Pre-trial checklist / listing questionnaire • Pre-trial review • Brief to counsel • Skeleton arguments • Case summary • Trial bundle • Reading list • Witness summons • Authorities • Notice to admit facts

Question 2

Pre-trial checklist

Answer 2

Pre-trial checklist = form N170 Court may have given a deadline for this on allocation The parties must: - Confirm whether they have complied with directions given - Specify any further directions required to prepare case for trial (with application form & draft orers) - Confirm whether court has consented to expert evidence being given at trial, and if not order should be sought - Give details of experts … - Give details of availability of experts, witnesses, counsel - Estimate trial length

Question 3

When is pre-trial checklist sent to each party?

Answer 3

At least 14 days before due date for filing The due date will be at least 8 weeks before trial date

Question 4

Listing directions

Answer 4

After pre-trial checklist has been filed, court will give any further directions necesary. Given with or without a hearing as appropriate. The court must give these directions on listing: - fix trial date - time estimate for trial - fix place of trial May give these directions: - evidence - trial timetable - preparation of trial bundles - any other matters

Question 5

What is a trial bundle?

Answer 5

All relevant material put before court. All documents likely to be referred to should be paginated and indexed.

Question 6

When should trial bundle be filed?

Answer 6

No more than 7 days and no less than 3 days before trial begins

Question 7

Trial bundle content

Answer 7

Its content should be agreed where possible. If disagreed, summary of points in dispute shoul dbe included

Question 8

What happens if the bundle is disorganised?

Answer 8

• Possible costs penalty - Judge will be anoyed

Question 9

Who should trial bundle be filed on?

Answer 9

• Court - Each party - Witnesses

Question 10

What should trial bundle include?

Question 11

What is the reading list given with trial bundles?

Answer 11

Sets out estimate of reading time judge willl require for understanding the case and relevant authorities. It should be signed by all advocates.

Question 12

What is a skeleton argument?

Answer 12

Must be prepared for HIgh Court trials, concisely summarising submissions ot be made and authorities ot be relied on.

Question 13

When should authorities to be relied on be submitted to court?

Answer 13

By 5pm the day befor ehte hearing

Question 14

Case summary

Answer 14

A short, non-contentious summary of the issues in the case should also be prepared. This is generally agreed by the parties.

Question 15

What if case settles between listing stage and trial?

Answer 15

The parties must notify the listing officer for the trial court immediately to enable the court to try and allocate the time to other cases. If this is not done, costs penalties are likely to be imposed.

Question 16

Notices to admit facts/ documents

Answer 16

Notice to admit fact = formally ask the other party to admit a particular factual point that is in issue in the case You hope that they will admit it so no evidence is needed If party contests fact which is found to be correct, then party receiving the notice is vulnerable and likely to face costs consequences Same principles - party is deemed to admit the authenticity of documents disclosed to them unless they serve notice that they wish the document to be proved at trial

Question 17

Brief to counsel

Answer 17

Solicitors need to send enough information to counsel Brief fee will be agreed with clerk and cover preparationa dn first day of trial Usually have staged payments in larger cases

Question 18

Secure attendance of witnesses and experts

Answer 18

May be compelled with witness summons, Form N20

Question 19

Court room etiquette

Answer 19

• Legal reps dress formally - Legal reps should stand when talking and sit otherwise - Address judge correctly - Barrister = my learned friend - Solicitor = my friend - Stand when judge enters or leaves - Never say ‘I think’, say ‘I submit’ - Do not approach bench without permission - If speaking first in court, a legal representative should introduce their opponent(s), by name, and state the party they represent. They should introduce themselves by identifying the party they represent, without stating their own name.

Question 20

Contents of trial

Question 21

Claimant’s opening speech

Answer 21

May be dispensed with. Will describe nature of claima nd identify issues to be tried.

Question 22

Claimant’s case

Answer 22

Evidence called. Witness statement will stand as evidence-in-chief and they will take the stand. May cross-examine by defence - leading questions Re-examine by claiamnt - non-leading questions

Question 23

Defendant’s case

Answer 23

Defence will call evidence in same way

Question 24

Closing speeches

Answer 24

Defence will make closing speech. Then claimant’s counsel will make closing speech

Question 25

If case is settled along the way..

Answer 25

A consent order is required, which will also be approved by court, as court will need to be notified of any settlement and that claim has ended

Question 26

When is judgment handed down?

Answer 26

Either immediately following trial, or it will be reserved so given on a later date. In the latter case, the judge can invite the parties’ legal representatives to give their views on how the judgment should be handed down. They will circulate judgment in draft in advance of forally handing it down (before 4pm on second working day before) so parties can prepare costs submissions and provide the judge with details of obvious errors It is not a public document at this stage

Question 27

Legal reps making notes at court

Answer 27

They should be very good. Unusual for transcripts ot be made of witness evidence and legal argument

Question 28

Disposal hearing

Answer 28

Some cases may be held by split trial. This means that hte court decides to firstly hold a trial to decide who is to blame and then at some time later assess level of damages. Latter hearing is called a disposal hearing. The court will usually allow a split trial in cases where the evidence on liability is different to the evidence on quantum

Question 29

Drawing up an order

Answer 29

Setting the order out in the formal document ot be sealed by the court

Question 30

Who draws up an order?

Answer 30

Court, unless party is ordered to draw it up or they agree to draw it u[, or it is a consent order. Party drawing it up should file it no later than 7 days after becoming responsible for doing so. File copies ofr service for themselves and other parties If they fail to do so within 7 days, then other party made draw it up instead

Question 31

How does court check order drawn up by parties?

Answer 31

Court will check and agree contents where appropriate

Question 32

When does a judgment/ order take effect?

Answer 32

The date it is given or made.

Question 33

When does interest run from on a judgment?

Answer 33

Interests run from date on which judgement is given The rate of interest is set at 8% per annum.

Question 34

How long do parties have ot comp[ly with judgement to pay money?

Answer 34

14 days from date of order, plus interest running in that time post judgment. Court has discretion to allow a stay of execution of judgment or order on grounds of matters which have occurred since date of judgment or order on application by party against whom order was made.

Question 35

Debt respite scheme

Answer 35

Provide temporary protection from judgment. Allows individual debtor to approach a debt advice provider to ask for 60 days of breathing space on the basis that they are unlikely to be able to repay their debts. During this period, the judgment creditor must stop all enforcement action to recover the step - interest, fees, penalties, chagrers The court must stop any action to eforce it stops too

Question 36

What is excluded from debt respite scheme?

Answer 36

Judgment for damages for death or PI

Question 37

Debtor with mental health crisis

Answer 37

A breathing space of potentially longer duration, and governed by slightly different rules, may be available

Question 38

Investigating the opponent’s means

Answer 38

• Before, as it progresses, adn post judgment - Post judgement - Judgment creditor can apply ot court for order to obtain information

Question 39

Order to obtain information from judgment debtor

Answer 39

Requiring them to attend court to provide info about their means or any matter which is needed to enforce a judgment or order The application may be made without notice to the judgement debtor. It must contain a penal notice, stating that if they do not comply their assets may be seized. Order to attend court must be served not less than 14 days before the hearing.

Question 40

Enforcement methods, main:

Answer 40

• Writs / warrants of control (see Taking Control of Goods below); • Third party debt orders; • Charging orders; and • Attachment of earnings orders You may have to transfer court oto get enforcement order necessary e.g. transferring from the County Court to the High Court for enforcement is to use a High Court Enforcement Officer to enforce the judgment by taking control of and eg selling the debtor’s goods.

Question 41

Investigations of debtor’s means

Answer 41

• Company search - Official copies - Relevant registers (land charges, individual insolvency, attachment of earnings order, register of judgements, orders, and fines) - Enquiry agent: private investigators

Question 42

What are the relevant registers?

Answer 42

Land Charges Registry - to work out equity in a property Individual Insolvency Register - list of people who have been made bankrupt or who have Debt Relief Orders or IVAs in place Attachment of EArnings orders - people who have these against them Register of Judgments, Orders, and Fines - all County and High Court judgements recorded. They have the judgments and outstanding debts…

Question 43

Opponent’s features

Answer 43

Legally aided opponent - will not recover costs and may not recover damages Dissipation of assets - may need freezing injunction Insured?

Question 44

Enforcement in other jurisdictions

Answer 44

• Check if there is a regime the UK is signatory to which allows enforcement of judgment abroad - If not, governed by common law of country - seek advice of foreign lawyer - If enforcing foreign judgment in England, need to obtain judgment from English or Welsh court, generally by treating judgment as a debt and issuing proceedings for non-payment of that debt and then applying for summary judgment. This can only be done if there is no appeal in foreign court.

Question 45

Procedural steps of enforcing judgment in foreign country

Answer 45

• Identify which jurisdiction you are dealing with - Judgment creditor must apply for certified copy of the judgement: Application may be made without notice, supported by evidence, claim form, statements of case, and evidence served on defendant. The evidence must: • Identify the grounds on which the judgment was obtained • State whether the defendant objected to the jurisdiction • Show that the judgment has been served • State appeal details eg the date on which the time for appealing expired • State whether interest is recoverable on the judgment.

Question 46

TCG

Answer 46

Taking control of goods An enforcement officer can seize a judgment debtor’s goods and sell them The goods must be owned by judgment debtor with no third party claims

Question 47

Which goods are exempt from TCG?

Answer 47

The most important exemptions are: • 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.

Question 48

Which could should the judgement creditor apply for TCG in?

Question 49

When should judgment creditor apply for TCG?

Answer 49

As soon as judgment has been obtained and judgment debtor has failed to pay

Question 50

How to apply for TCG?

Answer 50

High Court - writ of control County Court - warrant of control It is addressed to the EO and entitles them to seize and sell. It includes: - necessary details and amount of debt to be recovered - fixed amount for costs of TCG including costs fee EO can take thier own charges out of proceeds.

Question 51

Procedure of TCG

Answer 51

1. Giving notice to the judgment debtor of enforcement 2. Entering premises and securing the goods 3. Sale of the goods

Question 52

Procedure of TCG: Step 1 - Giving notice to judgement debtor of enforcement

Answer 52

EO will write to judgment debtor at least 7 clear days before taking control of any goods EO has 12 months from notice to take control of goods

Question 53

Procedure of TCG: Step 2 - Enter premises and secure goods

Answer 53

May use reasonable force if necessary but not force against persons - Cannot do before 6am or after 9pm - Cannot in any premise where a vulnerable person or child is only person present - After entry, EO must provide notice for judgement debtor giving details of what is happening

Question 54

Alternative to removing goods at Step 2

Answer 54

The EO to enter into a controlled goods agreement with the judgment debtor. 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. It is last chance situation.

Question 55

TCG procedure - Step 3

Answer 55

Unless judgement debtor now makes up debt, the EO can sell the goods. The EO must sell the goods for the best price that can be reasonably obtained, and the sale will usually take place by way of public auction Any surplus funds are paid back to judgement debtor

Question 56

Third Party Debt Orders

Answer 56

When a third party owes a debt to a judgment debtor. The court may make an order requiring a third party to pay a judgment creditor some or all of the debt owning.

Question 57

Third party debt order - procedure

Answer 57

The procedure requires the third party to search for and disclose information to the court and judgment creditor Interim order made without notice to judgment debtor. This will be served on third party first and prevents third party from making any payment until further order. Then served on judgment debtor and folloe dby notice hearing where judgement debtor will beheard. Court will decide whether to make a final order requiring the third party to pay the debt to the judgment creditor directly or to discharge the interim order

Question 58

Charging Orders on land or certain securities

Answer 58

Charging order = form of charge taken over land which secures a judgment debt It will remain in place until property is sold and so debt will be paid using proceeds. Subject to any prior mortgages… Two-stage procedure with interim order and final order Would need subsequent application to order sale after final order if want sale immediately

Question 59

Attachment of earnings orders

Answer 59

Only available in the County Court. When judgement debt or amount outstanding is more than £50, then salary will have deductions which are paid into court for payment to judgement creditor.

Question 60

Attachment of earning - procedure

Answer 60

• The judgment creditor applies by filing an application in a standard form, certifying the amount of the judgment that is outstanding and paying a fee. • The application and a reply form is served on the debtor who should complete and return the reply form to the court. • The court may then make an order (without the attendance of either party) attaching a proportion of the judgment debtor’s earnings. • That order is served on the debtor and the judgment debtor’s employer who is required to make the appropriate deduction from the debtor’s earnings and pay it to court for onward transmission to the judgment creditor.

Question 61

Attachment of earnings - problems

Answer 61

Could change jobs! If so, court may discharge order and judgment creditor will need to start again to enforce. There may be delay if debtor chooses not to return the reply form. The court staff will then issue an order served personally on the judgment debtor compelling the judgment debtor to respond.

Question 62

Insolvency proceedings

Answer 62

Bankruptcy - individuals if debt is >£5000 Winding up - companies if debt is >£750

Question 63

Insolvency procedure

Answer 63

The petition is issued and presented to the judgment debtor’s local court, and then served on judgment debtor. COurt fixes tie for hearing. If they do not attend, it will likely be made.

Question 64

Statutory demand

Answer 64

May be served prior to petition being signed. If debt remains unpaid for 21 days after service of the demand, the debtor is at risk of the court presuming that he is unable to pay and is therefore insolvent. It is a simple and low cost step. and can be very effective.

Question 65

Grounds of appeal

Answer 65

The appeal court will allow an appeal where the decision of the lower court was either: • Wrong • Unjust because of a serious procedural or other irregularity in the proceedings in the lower court The appellant needs to satisfy the appeal court that one of these grounds is met in order for the appeal to be successful

Question 66

How is appeal assessed?

Answer 66

Normally the appeal court will not have access to any new evidence and will not be able to hear and examine the evidence live

Question 67

Permission fo an appeal

Answer 67

The appeal system involves a ‘permission’ stage. There are two options: 1. Apply for permission from lower court when decision was made: - Orally - Saves time and costs - Does not prevent, even if unsuccessful, … 2. Make application to appeal court later - Done in writing usually with no hearing - More time to prepare

Question 68

How will application be considered? Court of Appeal

Answer 68

Default is for applications to be considered on the papers alone, unless the judge considers that the matter should be dealt with orally Judges have a duty to direct that a hearing takes place if they are of the opinion that they cannot ‘fairly determine’ the application on the papers. Any oral hearing will be listed within 14 days, unless circumstances are exceptional

Question 69

How will application be considered? County Court or High Court

Answer 69

If that appeal court refuses the paper application, the appellant may normally request within 7 days that the decision be reconsidered at an oral hearing If refused, then no appeal i possible

Question 70

Time limits for permission of appeal

Answer 70

General rule - appeal must be made within 21 days of the date of the lower court’s decision If a party has a good reason for a longer period, it can apply for an extension of time Judgments and orders take effect from the date they are given or made or such later date as the court may specify

Question 71

Permission - test for granting permission for first appeals

Answer 71

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 72

What are second appeals?

Answer 72

Second appeals are, as the name suggests, appeals of the decision made on the first appeal of a lower court’s decision. Court of Appeal will not give permission unless it considers: - appeal would have real prospect of success and raise an important point of principle or practice - some other compelling reason

Question 73

What happens when permission is granted?

Answer 73

Appeal can proceed. Appellant’s notice doubles as document which initiates the appeal itself. But it does not stay the order of the lower court, and so the offending judgment is still effective. This can lead to unfairness e.g. disproportionate outcome if order is enforced and then reversed. The High Court and Court of Appeal therefore can order a stay when justified, if applied for.

Question 74

Summary of routes of first and second appeals

Question 75

What orders can the appeal court make?

Answer 75

They have all the powers of the lower court. The appeal court has power to: (a) affirm, set aside or vary any order or judgment made or given by the lower court; (b) refer any claim or issue for determination by the lower court; (c) order a new trial or hearing; (d) make orders for the payment of interest; (e) make a costs order. The appeal court may instead, of course, dismiss the appeal.