W9 A&Q (Enforcement & Appeals)

Question 1

What is an enforcement proceedings ?

Answer 1

Enforcement proceedings are the the steps taken post judgement by the successful party in order to obtain payment from unsuccessful part.

Question 2

When will a defendant financial status be considered ?

Answer 2

Both before an action is commenced and as it progresses.

Question 3

Is it possible to involve the court in obtain information directly from the judgment debtors their assets ?

Answer 3

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.

Question 4

What order can a judgment creditor obtain from the court, where there is little known about the judgment debater?

Answer 4

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

Question 5

What is an oral examination of a debtor?

Answer 5

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

Question 6

Does an application for an oral examination for a debtor require a notice to the judgment debtor?

Answer 6

No

The application may be made without notice to the judgment debtor

Question 7

What is the procedure for an oral examination

Answer 7

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.

Question 8

How is an order to obtain information from the judgment debtor served? and what is the time limit

Answer 8

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)

Question 9

Who will question the judgment debtor?

Answer 9

The questioning will be carried out by a court officer or a judge if deemed necessary.

Question 10

What is the consequence if the judgment debtor fails to attend the hearing or attends but refuses to company?

Answer 10

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

Question 11

What are the main methods of enforcement of money judgments?

Answer 11

1) Writs/warrants of control

2) Third party debt orders

3) Charging orders

4) Attachment of earing’s order

5) Insolvency proceedings

Question 12

How many methods of enforcement can a judgment creditor use?

Answer 12

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.

Question 13

Which court can impose an Attachment of earnings order?

Answer 13

County court

Question 14

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?

Answer 14

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.

Question 15

Which court can enforce a sum of 5,000 pounds or more for a judgment order?

Answer 15

Must be enforced in the High Court

Question 16

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?

Answer 16

Needs to apply to transfer to the High Court

Sums of 5000 or more must be enforced in the High Court.

Question 17

Which court can enforce a sum less than 600 pounds for a judgment order?

Answer 17

County Court

Question 18

Which court can enforce a sum which arises out of an agreement regulated by the Consumer Credit Act 1974 judgment order?

Answer 18

County Court

Question 19

What does judgment debtor mean?

Answer 19

Owes the money (eg losing D)

Question 20

What does judgment creditor mean?

Answer 20

Wants the money (eg wining c)

Question 21

Does the court automatically take enforcement actions against judgment debtors?

Answer 21

No

The judgment creditor must take steps to enforce the judgment using one or a combinations of different methods of enforcement available first.

Question 22

Can the judgment creditor recover any more that is due to it under the judgment?

Answer 22

No

Question 23

When can an enforcement proceedings start?

Answer 23

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.

Question 24

What are example for investigating the debtor’s means?

Answer 24

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

Question 25

When should investigating the debtor’s mean take place?

Answer 25

1) Outset of the matter

2) End of action

3) Post judgment

Question 26

When should the investigating the debtors means be repeated or updated?

Answer 26

1) At the end of the action

2) Post judgment

Question 27

Why should the investigating the debtors means at the end of the action or post judgment be required?

Answer 27

In order to work out the most effective likely method of enforcement

Question 28

What is enquiry agents?

Answer 28

Private investigators, who through a variety of means are able to produce quite extensive information on individuals or companies upon request.

Question 29

What is an alternative method to enquiry agents?

Answer 29

Through a solicitor:

1) asking the client

2) conducting company searches

3) applying for official copies from the land register

and so on…

Question 30

What is the consequence if an enquiry agent’s misconduct?

Answer 30

Any misconduct by the enquiry agent will be imputed to the solicitor.

Question 31

What is a company searches?

Answer 31

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)

Question 32

What are register containing information which may be useful when considering enforcement proceedings?

Answer 32

1) Land Charges Registry

2) Individual insolvency register

3) Attachment of Earning Order Index

4) The Register of Judgments, Orders and Fines.

Question 33

What is a land charges registry?

Answer 33

This records restriction or prohibition on the use of a property and any charges against it.

Question 34

What is an Individual Insolvency Register?

Answer 34

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)

Question 35

How is Individual insolvency register useful for enforcement proceedings?

Answer 35

These orders and arrangements restrict how the debtors assets can be distributed so will impact the enforcement methods that will be effective

Question 36

How is land registry useful for enforcement proceedings?

Answer 36

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

Question 37

What is attachment of earning order index?

Answer 37

The index shows the debtors against whom there are attachment of earnings order in force.

Question 38

What are the Register of Judgments, Order and fines?

Answer 38

• 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.

Question 39

How is the register of judgment, orders and fines useful for enforcement proceedings?

Answer 39

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.

Question 40

What are some feature of the opponent, that should be considered for an enforcement proceedings?

Answer 40

1) the legally aided opponent

2) Dissipation of assets

3) The insured opponent

Question 41

If the opponent is a receipt of legal aid, how will this impact enforcement proceedings?

Answer 41

If the client wins, loses, they will not recover its costs and may not recover damages.

Question 42

What id dissipation of assets in regards to enforcement proceedings.

Answer 42

Is when the opponent assets has been dissipated (disposed of or moved) in anticipation of the judgment in the client’s favour.

Question 43

What are ways of preventing an opponent from dissipating assets?

Answer 43

Obtaining a freezing function

Question 44

If the opponent carries insurance for the risk involved. How will this impact the enforcement proceedings?

Answer 44

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.

Question 45

If the judgement has assets which are abroad. How will this impact the enforcement proceedings?

Answer 45

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.

Question 46

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?

Answer 46

It will be necessary to use the English courts to facilitate this.

Question 47

When a petition for bankruptcy against an individual can be issued for enforcement proceedings?

Answer 47

When the judgment debt against them is more than 5000

Question 48

When a petition for winding up against an individual can be issued for enforcement proceedings?

Answer 48

The judgment debt against it is more than 750

Question 49

What is taking control of goods?

Answer 49

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.

Question 50

Which goods are exempt in taking control of goods?

Answer 50

1) Tools of the judgment debtor’s trade (only to an aggregate value of 1350)

and

2) Basic domestic items

Question 51

What are the financial limits applied to the County Court for taking control of goods?

Answer 51

Up to 600 pounds

Question 52

What are the financial limits applied to the High Court for taking control of goods?

Answer 52

more than 5000 pounds

Question 53

When can judgment creditor choose where enforcement action should be commenced for taking control of goods?

Answer 53

When the outstanding debts sum is between 600 and 5000.

Creditor can use either High Court or County Court

Question 54

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?

Answer 54

Writ of control

+
Applicable fee

Question 55

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?

Answer 55

Warrant of control

+

Applicable fee

Question 56

Who is the writ or warrant of control addressed to ?

Answer 56

enforcement officer

Question 57

What will writ or warrant of control contain?

Answer 57

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.

Question 58

After the writ or warrant of control has been delivered to the enforcement officer what is the process of taking control of goods?

Answer 58

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

Question 59

How is the notice to the judgment debtor of enforcement given for taking control of goods?

Answer 59

The enforcement officer will write to the judgment debtor at least 7 clear days before taking control of any goods.

Question 60

Is the enforcement officer required to specify exactly when they will attempt to take the goods?

Answer 60

No

Question 61

What is time limit for the enforcement officer to take control of the judgment debtor’s goods?

Answer 61

12 months from the date of giving notice

Question 62

How is the entering the premises and securing the goods, accomplished?

Answer 62

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)

Question 63

What is the restriction of an enforcement officer when entering the premises and securing the goods?

Answer 63

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

Question 64

What is an alternative process from entering premises and securing the goods?

Answer 64

The enforcement officer enters into a controlled goods agreement with the judgment debtor.

Question 65

What is a controlled goods agreement?

Answer 65

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.

Question 66

What is the process of the sale of goods, in taking control of goods proceedings?

Answer 66

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.

Question 67

When is third party debt order procedure appropriate?

Answer 67

The procedure is appropriate when there is a debt due or accruing due to a judgment debtor by a third party within the jurisdiction.

Question 68

What is a third party debt order?

Answer 68

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.

Question 69

What is the procedure for third party debt orders?

Answer 69

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.

Question 70

Can a third party or judgment debtor object to the third party order?

Answer 70

Yes

But need to file and serve written evidence stating the grounds for objection

Question 71

what is a charging order ?

Answer 71

A charging order is a form of charge taken over land (or other specified assets) which secures a judgment debt

Question 72

what is the procedure for a charging order?

Answer 72

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)

Question 73

How will the judgment debt be paid in a charging order?

Answer 73

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)

Question 74

Which courts can impose an attachment of earnings orders?

Answer 74

Only the County Court

Question 75

What is attachment of earrings order?

Answer 75

Enables the judgment debtor’s salary to be intercepted and diverted to the judgment creditor in settlement of the judgment debt

Question 76

When is the attachment of earnings orders available?

Answer 76

Where the judgment debt or amount outstanding’s is not less than 50

Question 77

What is the attachment of earnings procedure?

Answer 77

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

Question 78

What is the consequence if the judgment debtor chooses not return the reply form in the attachment of earning proceedings?

Answer 78

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.

Question 79

What is the consequences where it appears to the county court that an employer does not have their debtor in their employment?

Answer 79

Court may discharge the order and the judgment creditor will need to start again in respect of enforcing any outstanding balance.

Question 80

What is the insolvency procedure?

Answer 80

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

Question 81

What is a statutory demand?

Answer 81

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

Question 82

What are the possible grounds of appeal ?

Answer 82

The lower court decision was
1) wrong or

2) unjust because of serious procedural or other irregularity

Question 83

What is the form of appeal?

Answer 83

Is a review of the lower court’s decision based on the evidence and representation the lower court heard.

Question 84

For civil disputes, can an appeal court re-hear the case?

Answer 84

No

only the form of review

Question 85

Can the appeal court have access to any new evidence?

Answer 85

No

Question 86

Can the appeal court be able to hear and examine the evidence live as the lower court have done?

Answer 86

No

Question 87

For grounds of appeal, how can a decision be wrong?

Answer 87

1) an error of law

or

2) an error of fact

or

3) an error in the exercise of the court’s discretion

Question 88

For grounds of appeal, how can a decision be unjust?

Answer 88

The irregularity must be ‘serious’ and it must have caused the lower court’s decision to be unjust.

Question 89

What are examples of irregularity?

Answer 89

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.

Question 90

When can a prospective appellant apply for permission to appeal?

Answer 90

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)

Question 90

What is the first stage in an appeal process in a civil dispute?

Answer 90

Obtaining permission to appeal

Question 91

How can a prospective appellant apply for permission from the lower court?

Answer 91

1) At the time when the decision to be appealed is made

2) Done orally (parties are already before the judge)

Question 92

What is the advantage of a prospective appellant applying for permission from the lower court?

Answer 92

1) Save time for the court and parties

2) save on costs

3) does not prevent later application to the appeal court

Question 93

If an appellant was unsuccessful for applying for permission from the lower court, can they still make an application to the appeal court?

Answer 93

Yes

Question 94

How can a prospective appellant apply for permission from the appeal court?

Answer 94

1) Writing (form N161), within 21 days of the date of the lowers court’s decision

(no hearing)

Question 95

How will an application for permission of appeal be determined in the Court of Appeal?

Answer 95

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

Question 96

For an application for permission of appeal, in what circumstances will a hearing for the application in Court of Appeal be listed?

Answer 96

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.

Question 97

What is the date that the Court of Appeal will list for an oral hearing of an application for appeal?

Answer 97

Within 14 days

Question 98

How will an application for permission of appeal be determined in the County Court or High Court ?

Answer 98

On paper,

(If refused, the decision will be reconsidered at an oral hearing)

Question 99

If the County Court or High Court refuses an paper application for permission. What is the next procedure for the appellant ?

Answer 99

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.

Question 100

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?

Answer 100

Within 7 days after the service of the notice of refusing permission from the court

Question 101

What is the time limit for appealing?

Answer 101

Must be made within 21 days of the date of the lower courts decision.

Question 102

What is the time limit for obtaining permission to appeal?

Answer 102

Must be made within 21 days of the date of the lower’s court decision

Question 103

Can the time limit for obtaining permission to appeal be extended?

Answer 103

Courts discretion, if the party has good reason for seeking a longer period

Question 104

Can the time limit to appeal be extended?

Answer 104

Courts discretion, if the party has good reason for seeking a longer period

Question 105

Would a delay in formally drawing up a judgment or order will delay time running for the purpose of making an appeal?

Answer 105

No

Judgment or order will NOT delay time running for the purpose of making a judgment

Question 106

When do judgments and orders take effect?

Answer 106

From the date they are given or made or such later date as the court may specify

Question 107

How will the court decide whether to grant permission for first appeal?

Answer 107

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.

Question 108

What are second appeals?

Answer 108

Appeals of the decision made on the first appeal of a lower court’s decision.

Question 108

Which court will gear second appeals?

Answer 108

Court of Appeal

Question 109

How will the Court of Appeal decide whether to grant permission for second appeal?

Answer 109

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

Question 110

What happens if permission is granted?

Answer 110

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

Question 111

Where will the appellant place the details of the grounds of their appeal?

Answer 111

The appellant notice

Question 112

Is the offending judgment still effective and enforceable pending appeal?

Answer 112

Yes

The general rule: An appeal does not operate as a stay of execution on the order of the lower court

Question 113

Which courts have the power to order a stay pending appeal?

Answer 113

The High Court and the Court of Appeal

Question 114

If an appellant is appealing the lower’s court order to demolish a building. Would this justify a stay pending appeal ?

Answer 114

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

Question 114

How is the routes of appeal determined?

Answer 114

Appeal lies to the next level of judge in hierarchy

Question 115

Appeal from the County Court District Judge dealing with non-insolvency proceedings brought pursuant to the companies act, who would the appellant appeal to?

Answer 115

High Court

Question 115

Appeal from the County Court District Judge, who would the appellant appeal to?

Answer 115

County Court Circuit Judge

Question 116

Appeal from the High Court Master, who would the appellant appeal to?

Answer 116

High Court Judge

Question 117

Appeal from the County Court Circuit Judge, who would the appellant appeal to?

Answer 117

High Court Judge

Question 118

Appeal from the High Court Judge, who would the appellant appeal to?

Answer 118

Court of Appeal

Question 119

What orders can the appeal court make?

Answer 119

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