W9 A&Q (Enforcement & Appeals) Flashcards
What is an enforcement proceedings ?
Enforcement proceedings are the the steps taken post judgement by the successful party in order to obtain payment from unsuccessful part.
When will a defendant financial status be considered ?
Both before an action is commenced and as it progresses.
Is it possible to involve the court in obtain information directly from the judgment debtors their assets ?
Yes,
The searches and investigations already taken can be repeated and updated and as part of the enforcement proceedings the judgment creditor can apply to the court for an order to obtain information from the judgment debtor.
What order can a judgment creditor obtain from the court, where there is little known about the judgment debater?
A debtor creditor may apply for an order requiring:
- a judgment debtor
or
- if a judgment debtor is a company or their corporations, an officer of that body
to attend court to provide:
- information about the judgment debtor’s means
or
- any matter about which information is needed to enforce a judgment order
What is an oral examination of a debtor?
Is when a debtor creditor applies to the court for an order requiring:
- a judgment debtor
or
- if a judgment debtor is a company or their corporations, an officer of that body
to attend court to provide:
- information about the judgment debtor’s means
or
- any matter about which information is needed to enforce a judgment order
Does an application for an oral examination for a debtor require a notice to the judgment debtor?
No
The application may be made without notice to the judgment debtor
What is the procedure for an oral examination
1) Creditor must file the application form:
- N316 to question an individual judgment debtor
or
- N316A to question an officer of a company or other corporation
2) The order must contain a penal notice
3) The order to attend court must be served personally on the person ordered to attend court not less than 14 days before the hearing. (Unless the court order otherwise)
4) The judgment debtor must then attend court and produce any document referred to in the order, and answer any question asked of them on oath.
How is an order to obtain information from the judgment debtor served? and what is the time limit
The order to attend court must be:
1) served personally on the person ordered to attend court
2) not less than 14 days before the hearing.
(Unless the court order otherwise)
Who will question the judgment debtor?
The questioning will be carried out by a court officer or a judge if deemed necessary.
What is the consequence if the judgment debtor fails to attend the hearing or attends but refuses to company?
The matter will be referred to the a judge who may make an order to the judgment debtor’s committal:
1) imprisoned
or
2) fined
or
3) assets may be sized
What are the main methods of enforcement of money judgments?
1) Writs/warrants of control
2) Third party debt orders
3) Charging orders
4) Attachment of earing’s order
5) Insolvency proceedings
How many methods of enforcement can a judgment creditor use?
The judgment creditor may use any method of enforcement which is available and may use more than one method of enforcement or one after the other… Until the judgment debts is fully paid up.
Which court can impose an Attachment of earnings order?
County court
If a claimant had a High court judgment and which wishes to use attachment of earing to enforce a money judgment? what is the procedure?
C needs to apply to transfer the proceedings to the County Court for the purpose of enforcement
Because Attachment of earning is only available to the county court.
Which court can enforce a sum of 5,000 pounds or more for a judgment order?
Must be enforced in the High Court
If C had a County Court judgment and has a sum of 5,000 and which C wishes to enforce against a judgment debtor. What is the procedure?
Needs to apply to transfer to the High Court
Sums of 5000 or more must be enforced in the High Court.
Which court can enforce a sum less than 600 pounds for a judgment order?
County Court
Which court can enforce a sum which arises out of an agreement regulated by the Consumer Credit Act 1974 judgment order?
County Court
What does judgment debtor mean?
Owes the money (eg losing D)
What does judgment creditor mean?
Wants the money (eg wining c)
Does the court automatically take enforcement actions against judgment debtors?
No
The judgment creditor must take steps to enforce the judgment using one or a combinations of different methods of enforcement available first.
Can the judgment creditor recover any more that is due to it under the judgment?
No
When can an enforcement proceedings start?
Debt must be due:
1)the time for payment as specified in the judgment itself or rules
2) must have elapsed without payment having been made.
What are example for investigating the debtor’s means?
1) Conducted company search
2) Applied for official copies from the land register
3) Searched against other relevant registers
and / or
4) Instructed an enquiry agent to report
When should investigating the debtor’s mean take place?
1) Outset of the matter
2) End of action
3) Post judgment
When should the investigating the debtors means be repeated or updated?
1) At the end of the action
2) Post judgment
Why should the investigating the debtors means at the end of the action or post judgment be required?
In order to work out the most effective likely method of enforcement
What is enquiry agents?
Private investigators, who through a variety of means are able to produce quite extensive information on individuals or companies upon request.
What is an alternative method to enquiry agents?
Through a solicitor:
1) asking the client
2) conducting company searches
3) applying for official copies from the land register
and so on…
What is the consequence if an enquiry agent’s misconduct?
Any misconduct by the enquiry agent will be imputed to the solicitor.
What is a company searches?
Allows for the access of information that companies are required to file at Companies House, including a company’s annual accounts.
The search will reveal extensive financial information about:
1) the company’s general solvency
2) the company’s asset and
3) whether those assets are charged
(However, information will not always be completely up to date)
What are register containing information which may be useful when considering enforcement proceedings?
1) Land Charges Registry
2) Individual insolvency register
3) Attachment of Earning Order Index
4) The Register of Judgments, Orders and Fines.
What is a land charges registry?
This records restriction or prohibition on the use of a property and any charges against it.
What is an Individual Insolvency Register?
This lists people who:
1) have been made bankrupt
or
2) who have Debt Relief Orders
or
3) Individual Voluntary Arrangements
in place
(These orders and arrangements restrict how the debtors assets can be distributed so will impact the enforcement methods that will be effective)
How is Individual insolvency register useful for enforcement proceedings?
These orders and arrangements restrict how the debtors assets can be distributed so will impact the enforcement methods that will be effective
How is land registry useful for enforcement proceedings?
Information from this, can be used to work out if there is any equity in a property owned by the debtor and whether an order for sale would ultimately be possible or not
What is attachment of earning order index?
The index shows the debtors against whom there are attachment of earnings order in force.
What are the Register of Judgments, Order and fines?
- All County Court judgments from April 1990 onwards are entered on this register and remain registered for 6 years.
If the judgment is satisfied within one month , the entry may be cancelled at the judgment’s debtor request.
If the judgment is satisfied after this month period, the judgment debtor may obtain a certificate of satisfaction to show the amount due has been paid.
- Since April 2006, High Court judgement are also now recorded on this register. the information included in the register includes the:
1) debtors’ name
2) address
3) the amount of withstanding debts.
How is the register of judgment, orders and fines useful for enforcement proceedings?
This register allows to see if the debtor already has any unsatisfied judgments against them, and who holds those judgement. there may be ongoing enforcement proceedings already in relation to those judgments which could impact the decision in relation to the judgment intended to enforce.
What are some feature of the opponent, that should be considered for an enforcement proceedings?
1) the legally aided opponent
2) Dissipation of assets
3) The insured opponent
If the opponent is a receipt of legal aid, how will this impact enforcement proceedings?
If the client wins, loses, they will not recover its costs and may not recover damages.
What id dissipation of assets in regards to enforcement proceedings.
Is when the opponent assets has been dissipated (disposed of or moved) in anticipation of the judgment in the client’s favour.
What are ways of preventing an opponent from dissipating assets?
Obtaining a freezing function
If the opponent carries insurance for the risk involved. How will this impact the enforcement proceedings?
It may mean that the opponent will be entitled to be indemnified by the insurance company for some or all the damages and/or costs that are to be paid to the client and payment is more easily forthcoming to the judgement as a result.
If the judgement has assets which are abroad. How will this impact the enforcement proceedings?
it may be necessary or desirable to take steps to enforce a judgment of the English court (obtained against the debtor in English proceedings) in a foreign jurisdiction.
If the judgment creditor has a judgment from a foreign court to enforce against assets in the UK. How will this impact the enforcement proceedings?
It will be necessary to use the English courts to facilitate this.
When a petition for bankruptcy against an individual can be issued for enforcement proceedings?
When the judgment debt against them is more than 5000
When a petition for winding up against an individual can be issued for enforcement proceedings?
The judgment debt against it is more than 750
What is taking control of goods?
This a procedure which allows an enforcement officer, to seize a judgment debtor’s good in order to use the proceeds of sale to satisfy the judgment debt and expenses.
Which goods are exempt in taking control of goods?
1) Tools of the judgment debtor’s trade (only to an aggregate value of 1350)
and
2) Basic domestic items
What are the financial limits applied to the County Court for taking control of goods?
Up to 600 pounds
What are the financial limits applied to the High Court for taking control of goods?
more than 5000 pounds
When can judgment creditor choose where enforcement action should be commenced for taking control of goods?
When the outstanding debts sum is between 600 and 5000.
Creditor can use either High Court or County Court
If a judgement creditor commences the process of taking control of goods, in the High Court what are the relevant document needed to issue to commence a taking control of goods?
Writ of control
+
Applicable fee
If a judgement creditor commences the process of taking control of goods, in the County Court what are the relevant document needed to issue to commence a taking control of goods?
Warrant of control
+
Applicable fee
Who is the writ or warrant of control addressed to ?
enforcement officer
What will writ or warrant of control contain?
1) the necessary details and amount of the outstanding debt to be recovered
2) fixed amount for the cost of taking control of good will be added which includes the court fee.
After the writ or warrant of control has been delivered to the enforcement officer what is the process of taking control of goods?
- Giving notice to the judgment debtor of enforcement
- Entering premisses and securing the goods
- Sales of the goods.
How is the notice to the judgment debtor of enforcement given for taking control of goods?
The enforcement officer will write to the judgment debtor at least 7 clear days before taking control of any goods.
Is the enforcement officer required to specify exactly when they will attempt to take the goods?
No
What is time limit for the enforcement officer to take control of the judgment debtor’s goods?
12 months from the date of giving notice
How is the entering the premises and securing the goods, accomplished?
1) Enforcement officer enters the premises ( may use reasonable force if necessary)
2) Enforcement officer may secure goods on the premises or highway or remove goods from the premises ready for sale.
3) Enforcement officer must provide a notice for the judgment debtor giving details of what is happening (what goods have been taken)
What is the restriction of an enforcement officer when entering the premises and securing the goods?
1) Cant take control of goods before 6pm or after 9pm on any day
2) nor at any premises when a child or venerable person is the only person present
What is an alternative process from entering premises and securing the goods?
The enforcement officer enters into a controlled goods agreement with the judgment debtor.
What is a controlled goods agreement?
This is an agreement whereby the judgement debtor is permitted to retain custody (and use) of the goods, despite the EO taking control of them, pending payment of the debt.
What is the process of the sale of goods, in taking control of goods proceedings?
Unless the judgment debtor now makes payment of debt, the goods must be sold by EO.
- 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
- The sum specified in the writ or warrant of control will be paid to the judgment creditor out of the proceeds of sale and recovery will be complete.
- Any surplus funds are paid back to the judgment debtors.
When is third party debt order procedure appropriate?
The procedure is appropriate when there is a debt due or accruing due to a judgment debtor by a third party within the jurisdiction.
What is a third party debt order?
1)Upon the application of the judgment creditor
2) 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,
3) in satisfaction of the
- judgment debts and
- the judgments creditors cost of the application.
What is the procedure for third party debt orders?
1)Interim order is made without the notice of a judgment debtor
2) interim order served on the third party first and prevents third party from making any payment to the judgment debtor until further notice.
3) requires the third party to search and disclose information to the court and judgment creditor
4) Interim order served on judgment debtor
5) a notice of hearing where the judgment debtor (and third party if they wish) will be heard
6) 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.
Can a third party or judgment debtor object to the third party order?
Yes
But need to file and serve written evidence stating the grounds for objection
what is a charging order ?
A charging order is a form of charge taken over land (or other specified assets) which secures a judgment debt
what is the procedure for a charging order?
Judgment creditor must obtain a
1) interim charging order
followed by
2) final order
3) order for sale (if judgment creditor wants to force the sale process)
How will the judgment debt be paid in a charging order?
Charging order is final, it will remain in place until the property is sold by the debtor.
The debts will be paid using the sale proceeds and the charge removed as part of the process of selling the property
(subject to any prior mortgages and charges and the overriding rights of any co-owners of the property)
Which courts can impose an attachment of earnings orders?
Only the County Court
What is attachment of earrings order?
Enables the judgment debtor’s salary to be intercepted and diverted to the judgment creditor in settlement of the judgment debt
When is the attachment of earnings orders available?
Where the judgment debt or amount outstanding’s is not less than 50
What is the attachment of earnings procedure?
1) judgment creditor applies by filing an application in a standard form, certifying the amount of the judgment that is outstanding and paying fee.
2) The application and reply form is served on the debtor who should complete and return the reply form to the court
3) The court may then make an order (without the attendance of either party) attaching a proportion of the judgment debtor’s earning
4) The order is served on the debtor and the judgment debtor’s employer who is required to make the appropriate deduction from the debtor’s earning and pay it to the court for onward transmission to the judgement creditors
What is the consequence if the judgment debtor chooses not return the reply form in the attachment of earning proceedings?
Court staff will then issue an order served personally on the judgment debtor compelling the judgment debtor to responds
eventually this process can lead to the judgment debtor being imprisoned, but further hearing are required.
What is the consequences where it appears to the county court that an employer does not have their debtor in their employment?
Court may discharge the order and the judgment creditor will need to start again in respect of enforcing any outstanding balance.
What is the insolvency procedure?
1) Petition is issue and presented to the judgment debtor’s local court
2) served on the judgment debtor
3) court fixes a time for hearing the petition
- debtor will be notified of the date to attend court hearing to decided whether
a) a bankruptcy order
b) winding up order
should be made against them
4) if they do not attend to oppose the petition at the hearing, the bankruptcy or winding up order will likely be made
5) debtor’s asset will be distributed to their creditor according to very specific rules
What is a statutory demand?
This might be served on the debtor prior to petition being issued. this precursor to insolvency proceedings being commenced is a demand in a simple standard form.
The debt remains unpaid for a period of 21 days after service of the demand
What are the possible grounds of appeal ?
The lower court decision was
1) wrong or
2) unjust because of serious procedural or other irregularity
What is the form of appeal?
Is a review of the lower court’s decision based on the evidence and representation the lower court heard.
For civil disputes, can an appeal court re-hear the case?
No
only the form of review
Can the appeal court have access to any new evidence?
No
Can the appeal court be able to hear and examine the evidence live as the lower court have done?
No
For grounds of appeal, how can a decision be wrong?
1) an error of law
or
2) an error of fact
or
3) an error in the exercise of the court’s discretion
For grounds of appeal, how can a decision be unjust?
The irregularity must be ‘serious’ and it must have caused the lower court’s decision to be unjust.
What are examples of irregularity?
1) A party being no chance to make submissions
2) A party’s submission or too much of their skeleton argument being incorporated into the judgement
3) The lower court judge having been involved in pervious proceedings.
4) The manner in which the judge handled the evidence.
When can a prospective appellant apply for permission to appeal?
They have a choice:
1) Apply for permission from the lower court at the time when the decision to be appealed is made.
and / or
2) Make the application to the appeal court later
(within 21 days of the date of the lower court decision)
What is the first stage in an appeal process in a civil dispute?
Obtaining permission to appeal
How can a prospective appellant apply for permission from the lower court?
1) At the time when the decision to be appealed is made
2) Done orally (parties are already before the judge)
What is the advantage of a prospective appellant applying for permission from the lower court?
1) Save time for the court and parties
2) save on costs
3) does not prevent later application to the appeal court
If an appellant was unsuccessful for applying for permission from the lower court, can they still make an application to the appeal court?
Yes
How can a prospective appellant apply for permission from the appeal court?
1) Writing (form N161), within 21 days of the date of the lowers court’s decision
(no hearing)
How will an application for permission of appeal be determined in the Court of Appeal?
On papers alone
UNLESS: The judge considers that the matter should be delt with orally , in which case they can exercise their discretion to summon the parties for an oral hearing
For an application for permission of appeal, in what circumstances will a hearing for the application in Court of Appeal be listed?
If Judges have the opinion that they cannot ‘fairly determine’ the application on paper.
Any oral hearing will be listed within 14 days, unless circumstances are exceptional.
What is the date that the Court of Appeal will list for an oral hearing of an application for appeal?
Within 14 days
How will an application for permission of appeal be determined in the County Court or High Court ?
On paper,
(If refused, the decision will be reconsidered at an oral hearing)
If the County Court or High Court refuses an paper application for permission. What is the next procedure for the appellant ?
The appellant may normally request (Within 7 days after the service of the notice of refusing permission) that the decision be reconsidered at an oral hearing.
What is the time limit for an appellant request their decision to be considered at an oral court in a County Court or High Court?
Within 7 days after the service of the notice of refusing permission from the court
What is the time limit for appealing?
Must be made within 21 days of the date of the lower courts decision.
What is the time limit for obtaining permission to appeal?
Must be made within 21 days of the date of the lower’s court decision
Can the time limit for obtaining permission to appeal be extended?
Courts discretion, if the party has good reason for seeking a longer period
Can the time limit to appeal be extended?
Courts discretion, if the party has good reason for seeking a longer period
Would a delay in formally drawing up a judgment or order will delay time running for the purpose of making an appeal?
No
Judgment or order will NOT delay time running for the purpose of making a judgment
When do judgments and orders take effect?
From the date they are given or made or such later date as the court may specify
How will the court decide whether to grant permission for first appeal?
Permission will only be granted where the court considers:
1) That the appeal would have a real prospect of success (same as summary judgment test)
or
2) That there is some other compelling reason why the appeal should be heard.
What are second appeals?
Appeals of the decision made on the first appeal of a lower court’s decision.
Which court will gear second appeals?
Court of Appeal
How will the Court of Appeal decide whether to grant permission for second appeal?
1) Appeal would have a real prospect of success AND raise an important point of principle or practice
or
2) There is some other compelling reason for the Court of Appeal to hear it
What happens if permission is granted?
The appeal can proceed:
1) The appellant’s notice, which is used to request permission if necessary, doubles as the document which initiates the appeal itself
2) In it, the appellant also gives details of the grounds of their appeal and other information, evidence and supporting documents
3) The appeal court uses the contents of the appellant’s notice to progress the appeal to its final determination
Where will the appellant place the details of the grounds of their appeal?
The appellant notice
Is the offending judgment still effective and enforceable pending appeal?
Yes
The general rule: An appeal does not operate as a stay of execution on the order of the lower court
Which courts have the power to order a stay pending appeal?
The High Court and the Court of Appeal
If an appellant is appealing the lower’s court order to demolish a building. Would this justify a stay pending appeal ?
Carrying out a lower court’s order to demolish a building would defeat the benefit of a successful appeal.
It may therefore serve justice to stay the order to demolish pending the appeal being heard
How is the routes of appeal determined?
Appeal lies to the next level of judge in hierarchy
Appeal from the County Court District Judge dealing with non-insolvency proceedings brought pursuant to the companies act, who would the appellant appeal to?
High Court
Appeal from the County Court District Judge, who would the appellant appeal to?
County Court Circuit Judge
Appeal from the High Court Master, who would the appellant appeal to?
High Court Judge
Appeal from the County Court Circuit Judge, who would the appellant appeal to?
High Court Judge
Appeal from the High Court Judge, who would the appellant appeal to?
Court of Appeal
What orders can the appeal court make?
The appeal court has power to:
1) Affirm, set aside or vary any order or judgment made or given by the lower court
2) Refer any claim or issue for determination by the Lower Court
3) Order new trail or hearing
4) Make orders for the payment of interest
5) Make a costs order
6) Dismiss the appeal
