Unit 20 - Judgements, Orders, Enforcement, Appeals

Question 1

Appeal from a District Judge in the County Court lies to a…

Answer 1

…circuit judge.

Question 2

Appeal from a Master or District Judge in the High Court lies to a…

Answer 2

…High Court judge.

Question 3

Appeal from a Circuit judge lies to a…

Answer 3

…High Court judge.

Question 4

Appeal from a High Court judge lies to…

Answer 4

…the Court of Appeal.

Question 5

TRUE or FALSE. A decision which was itself made on appeal can only be appealed to the Court of Appeal.

Answer 5

TRUE.

Question 6

Applications for permission to appeal should be made…

In writing?

At the hearing at which the decision to be appealed against is made?

Answer 6

FALSE. Make them orally.

TRUE.

Question 7

What form is used for appellant notices?

Answer 7

N161

Question 8

TRUE or FALSE. Application to appeal usually considered without a hearing.

Answer 8

TRUE. If refused, request for it to be reconsidered at a hearing.

Question 9

On what basis can an appeal court refusing permission on the papers make an order to prevent reconsideration at a hearing?

Answer 9

If it considers that the application is totally without merit.

Question 10

TRUE or FALSE. There is no appeal from a decision of the appeal court allowing or refusing permission to appeal.

Answer 10

TRUE.

Question 11

On what basis will a second appeal be allowed?

Answer 11

Important point of principle or practice;

A compellng reason which justifies the grant of permission;

Appeal must have a real prospect of success.

Question 12

The appellant must file an appellant’s notice at the appeal court with X days after the decision that they wish to appeal.

Answer 12

21 days

Question 13

TRUE or FALSE. Permission to appeal will only be given where the court considers that the appeal appears to have a real prospect of success or there is some other compelling reason why the appeal should be heard.

Answer 13

TRUE.

Question 14

TRUE or FALSE. Appeal notices must be served only on the court as soon as practicable or not later than 7 days after filing.

Answer 14

FALSE. Must be served on each respondent.

Question 15

Will an appeal court receive oral evidence or evidence that was not before the lower court?

Answer 15

Usually not, but can order otherwise.

Question 16

When will a leapfrog appeal occur?

Answer 16

In general, only where the appeal raises an important issue of law or procedure or there is some other compelling reason for CoA to hear it.

Question 17

TRUE or FALSE. Initiating an appeal generally operates to stay execution of an order/judgment under appeal.

Answer 17

FALSE. Generally, it doesn’t. A stay should be sought from the judge who made the order, or the court being appealed to.

Question 18

What will a judge consider in deciding whether to grant a stay pending appeal?

Answer 18

Successful litigant ought not to be deprived of fruit of judgment;

Consider risk of injustice to the parties if stay granted/refused.

Would refusal of a stay stifle the appeal?

If stay granted but appeal fails, would R be able to enforce judgment?

Question 19

TRUE or FALSE. All appeals require permission to appeal.

Answer 19

FALSE. The exceptions under CPR 52.3(1) do not:

• Committal orders;
• Refusal to grant habeas corpus;
• Secure accommodation order under s25 Children Act 1989

Question 20

What are the two routes of appeal under CPR 52?

Answer 20

Appeal at the hearing which you want to appeal;

Appeal to the appeal court in an appeal notice.

Question 21

What is the normal route of appeal from the decision of acounty court district judge?

Answer 21

County Court Circuit Judge

Question 22

What is the normal route of appeal from the decision of a county court circuit judge?

Answer 22

High Court Judge

Question 23

Name one instance when an appeal from a county court circuit judge can be heard by the Court of Appeal

Answer 23

Where circuit judge’s decision was itself an appeal;

Raises an important issue of law or procedure or there is some other compelling reason for it to be heard by the CoA

Question 24

What is the usual period in which an appeal must be commenced?

Answer 24

Appeal notice must be filed within 21 days of the decision of the lower court.

Question 25

Who may grant permission to appeal?

Answer 25

Judge of lower court; or

The appeal court.

(permission to appeal an appeal can only be given by CoA)

Question 26

When is permission to appeal not required?

Answer 26

Appeal against a committal order;

Appeal against a refusal to grant habeas corpus;

Appeal against a secure accommodation order under s25 CA 1989

Question 27

At what time, and how, should permission be requested from the lower court?

Answer 27

Orally, at the end of the hearing.

Question 28

A request for permission to appeal made to the appeal court is usually decided on the papers. What can A do if permission is refused?

Answer 28

Ask for an oral hearing.

Will be refused if it appears that the app is totally without merit (and may even result in a civil restraint order).

Question 29

If the appeal court refuses permission to appeal after an oral hearing, who hears the appeal against that decision?

Answer 29

No one.

However, HC and CoA have power to re-open a final determination of any appeal, including an application for permission.

Question 30

What is the general test governing whether permission to appeal should be granted?

Answer 30

Reasonable prospect of success; or

Some other compelling reason why it should be heard.

Question 31

How soon after it has been filed must an appellant’s notice be served on R?

Answer 31

As soon as practicable and in any event within 7 days of being filed.

Question 32

In what circumstances does a respondent have to serve notice in an appeal?

Answer 32

If they want to cross-appeal;

If they want the appeal court to uphold the decision for a different reason.

Question 33

What is the general principal governing whether permission will be given for a second appeal?

Answer 33

Have a real prospect of success AND raise an important point of principle or practice; or

Some other compelling reason for the court to hear it.

Question 34

There are three conditions that need to be satisfied before fresh evidence can be produced at an appeal - name one of them.

Answer 34

Evidence could not have been obtained with reasonable diligence for use at the original hearing;

The evidence would probably have had an important influence on the result of the case;

The evidence was credible.

Question 35

The appeal court will allow an appeal if one of two criteria are met.

Answer 35

The lower court decision was wrong; or

Unjust becuase of a serious procedural or other irregularity in the proceedings.

Question 36

Name one option open to the appeal court if the appeal is successful.

Answer 36

Set aside or vary any judgment or order of lower court;

Refer any issue or claim for determination by the lower court;

Order a new trial or hearing

Question 37

Will a stay of the original order normally be granted pending an appeal?

Answer 37

Not normally.

But it might be appropriate if
- refusal of stay would stifle the appeal.

It might not be appropriate if it would mean that the respondent would be unable to enforce the original judgment if the appeal failed.

Question 38

An appeal is normally limited to a review. When would an appeal by way of a rehearing be considered?

Answer 38

If a practice direction provides otherwise; or

If the appeal court considers it would be in the interests of justice.

Question 39

According to PD52A para 5.1, what is the purpose of a skeleton argument.

Answer 39

To set out as concisely as practicable the arguments upon which a party intends to rely.

Question 40

What is a judgment creditor?

Answer 40

A person who has obtained or is entitled to enforce a judgment or order.

Question 41

TRUE or FALSE. Where a fine imposed under County Courts Act 1984 is directed to be paid in instalmenets, default may be taken as if default had been made in payment of the whole of the fine.

Answer 41

TRUE.

Question 42

Can a judgment creditor use more than one method of enforcement at the same time?

Answer 42

Yes.

Question 43

Can the court order for an act to be done at the expense of the disobedient party?

Answer 43

Yes.

Question 44

Can proceedings be transferred to High Court for enforcement?

Answer 44

Yes. Most common reason is to use High Court Enforcement Officer.

Question 45

TRUE or FALSE. If a judgment or order is given or made in favour of or against a person who is not a party to proceedings, can it be enforced by same methods as if they were a party?

Answer 45

Yes.

Question 46

Under 70PD1.1, how can a judgment creditor enforce a judgment or order for the payment of money?

Answer 46

A writ of control of warrant of control;

A third party debt order;

A charging order, stop order or stop notice;

In CC, an attachment of earnings order;

The appointment of a receiver.

Question 47

What is the purpose of oral examination under CPR 71?

Answer 47

To enable judgment creditor to obtain information from judgment debtor for the purpose of being able to better decide which method or methods of enforcement ot use.

Question 48

Can an application for ora lexamination be made without notice?

Answer 48

Yes.

Question 49

What happens if party fails to comply with an oral examination order?

Answer 49

Court will refer the matter to a high court judge or circuit judge.

Question 50

What forms are used for oral examination application notice?

Answer 50

N316/N316A

Question 51

What is a third party debt order?

Answer 51

If a debtor is owed money by 3, the creditor can obtain an order that 3 should pay the judgemnet creditor.

Question 52

TRUE or FALSE. Third party debt orders are obtained without notice on an interim basis.

Answer 52

TRUE.

Question 53

TRUE or FALSE. It is possible to onbtain a third party debt order against a bank account in the joint names of the debtor an wife.

Answer 53

FALSE. But this is in contrast to execution.

Question 54

What form is to be used for third party debt order applications?

Answer 54

N349

Question 55

TRUE or FALSE. The court will grant speculative applications for third party debt orders.

Answer 55

FALSE. WIll only grant them if notice contains evidence to substantiate belief that debtor has an account with the bank in question.

Question 56

What is a charging order?

Answer 56

Imposing on the property of the debtor a charge for securing the payment of any money due under judgment/order.

Question 57

There are broadly four kinds of charging order:

Answer 57

Charging order over land;

Charging order over securities;

Charging order over a judgment debtor’s interest in a fund in court;

Charge over judgment debtors interest in partnership property.

Question 58

TRUE or FALSE. Most charging orders are made in the couny Court.

Answer 58

TRUE.

Question 59

What form is used for charging orders?

Answer 59

N379 for land;

N380 for securities.

Question 60

What are writs and warrants of control?

Answer 60

They enable the taking control and sale of goods, solely to recover money.

Question 61

The priority of a writ of control is determined by…

Answer 61

…when it is delivered to the relevant enforcement officer.

Question 62

The priority of a warrant of control is determined by…

Answer 62

…reference to the date upon which it was isued.

Question 63

A judgement or order of a county curt for payment of sum of money whic it has sought to enforce by execution of goods can only be enforced in the High Court when…?

In the county court when…?

Answer 63

£5000 or more and proceedings did not arise out of Consumer Credit Act 1974;

Less than £600.

Anything in between can be enforced in either.

Question 64

A relevant writ or warrant must not be issued without the permission of the court where…

Answer 64

…Six years or more have elapsed since date of judgment/order; or

Any change has taken place in parties entitled/liable to order; or

judgment agaisnt assets of deceased person coming into hands of executors after date of judgment or order;

Any goods to be seized are in hands court-appointed receiver;

Under judgmenet, any person entitled to a remedy subject toa condition which has been fulfilled;

Permission sought for a write which is in aid of another writ.

Question 65

The taking control of goods process is as follows:

Answer 65

Enforcement agent gives notice to debtor;

The debtor contacts agent and pays or enters and arrangement for payment OR agent takes control of goods;

• Secure on premises;
• Seucre on highway;
• remove goods and store elsewhere
• Entry into a controlled goods agreemnt;

Goods sold at auction;

Proceeds used to pay amount outstanding.

Question 66

Enforcement agents for Taking Control of Goods can make the following applications to the court:

Answer 66

Shorten period for notice to debtor of enforcement;

Extend prescribed period to take control of goods;

Take control of goods during prohibited periods;

Enter, re-enter or remain on premises outside permitted hours;

Re-enter premises giving less than minimum period of notice;

Issue warrant and use force to enter premises;

Use reasonable force re goods on highway;

Sell other than by public aution;

Deal with abandoned goods;

Obtain exceptional disbursements.

Question 67

What is a controlled goods agreement?

Answer 67

Agreemnet under which enforcement agent and debtor agree terms for repayment by debtor of the sum outstanding under the judgment or order.

Question 68

What is an attachment order?

Answer 68

Order to make periodicla deductins from debtors earnings.

Question 69

What is a tomlin order?

Answer 69

An order that further proceedings are stayed, except for the purpose of carrying out the terms of the compromise.

Question 70

What three things are usually dealt with on face of a Tomlin order?

Answer 70

Stay of proceedings;

Liberty of parties to compel compliance;

payment and assessment of costs

Question 71

TRUE or FALSE. Tomlin order schedules must be made public.

Answer 71

FALSE.

Question 72

TRUE oe FALSE. Applications to vary tomlin orders are subject to CPR.

Answer 72

TRUE.

Question 73

TRUE or FALSE. Tomlin order schedule is contractual, so only changeable on contractual bases.

Answer 73

TRUE.

Question 74

How are judgments for immediate payment enforced?

Answer 74

Via proceedings 14 days after judgment;

Question 75

How are judgments for agreed sums, subject to stay and instalments, enforced?

Answer 75

If they fall into arreas, lift stay and bring enforcement.

Question 76

How are consent orders enforced?

Answer 76

If not complied with, enforcement can be immediate or upon application.

Question 77

How are tomlin ordesr enforced?

Answer 77

Substantive terms enforceable as they stand;

Scheduled terms require parties to apply under liberty to force compliance clause. then get an order to compel such compliance.

Question 78

How are consent orders, staying all further proceedings on agreed terms, enforced?

Answer 78

Courts unwilling to remove stay. Usually only effected by bringing fresh proceedings for breach of compromise contract.

Question 79

How are consent orders providing for no order save as to costs, but setting out the agreed terms in recitals, enforced?

Answer 79

No need to bring a fresh claim.

Question 80

What is a consent order?

Answer 80

Where all parties agree the terms in which a judgment should be given or an order should be made.

Question 81

What orders/judgements can be part of a consent orer?

Answer 81

Order for payment of money or delivery of goods;

Order for dismissal of proceedings, stay of proceedings, diposal, or (un)conditional stay of judgment via instalment payments;

setting aside of default judgment

Payment out of money paid into court

Discharge of liability for any party;

Payment, assessment or waiver of costs.

Question 82

Can the terms of in the schedule of a tomlin order be enforced directly by court order?

Answer 82

No.

Question 83

What does a Tomlin order do?

Answer 83

records terms of settlement agreed between parties, but without those terms being ordered by the court or enforceable without a further order.

Question 84

What are the three orders that a court usually makes in relation to Tomlin orders?

Answer 84

That proceedings be stayed to enable agreed terms to be put int oeffect;

IF agreed, that there be payment out of monies paid into court and provision for accrued interest thereon

For costs to be assessed, whether between parties or out of public funds.

Question 85

When does a judgment or order take effect?

Answer 85

From the day it was given/made, or such later date if court specifies.

Question 86

On what grounds can a party, against whom judgment/order has been made, apply to the court for stay or other relief?

Answer 86

On the ground of matters which have occurred since date of judgment/order, and the court may by order grant such relief and on such terms as it thinks just.

Question 87

Who may apply to set aside or vary a judgment or order?

Answer 87

A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.

Question 88

A party must comply with a judgment order for payment of money within X days…

Unless?

Answer 88

14 days

Unless judg specifically sauys otherwise / rules specify a different date / court stays proceedings.