W9 MCQ (Trial, Appeal & Enforcement)

Question 1

A consent order can be used to settle:

A. Either / both an interim application or/and an entire claim.

B. An entire claim.

C. An interim application.

Answer 1

A. Either / both an interim application or/and an entire claim.

Consent orders can be used to settle an entire claim, but they can also be used for an interim application. For example, if one party needs to apply for extra time for service of witness statements, and the other side agrees to this, then the parties will file a consent order at court and ask the court to approve the consent order (thus allowing the extension). The court is not obliged to do so – it can still refuse the extension – but the court is much more likely to grant an application that all parties agree to.

Question 2

The parties settle a breach of contract claim by the Defendant agreeing to pay the Claimant £15,000 and the Claimant giving the Defendant reduced prices on the Claimant’s goods for the next 1 year. Does this need to be reflected in a Tomlin Order, or can a simple Consent Order be used?

A. A Tomlin Order is required.

B. A Consent Order is sufficient.

Answer 2

A. A Tomlin Order is required.

The court does not have the power to order that the Claimant must provide its goods on particular terms to the Defendant in a breach of contract claim, so this cannot be included on the face of a Consent Order. These provisions will need to go in the schedule to a Tomlin Order.

Question 3

A Claimant writes a letter of claim to a Defendant in accordance with the Professional Negligence Pre-Action Protocol. Following the Defendant’s reply, the parties agree to mediate. At the mediation, the Defendant agrees to pay the Claimant £65,000 in full and final settlement. How should this settlement be recorded?

A. In a settlement agreement.

B. In a Tomlin Order (and schedule).

C. In a Consent Order.

Answer 3

A. In a settlement agreement.

No proceedings have been issued, so a Consent Order / Tomlin Order is not required. If the settlement agreement is breached, then the aggrieved party effectively has to commence proceedings for breach of contract – the contract being the settlement agreement.

Question 4

You act for Teleparts Limited, which manufactures parts for televisions. It has instructed you to issue proceedings against Paul Rank & Co, an electronic goods retailer, for failure to pay for goods delivered. The court fixed the trial date to commence on Tuesday 26 November. What is the latest date by which trial bundles must be filed with the court?

A. Tuesday 19 November

B. Saturday 23 November

C. Friday 22 November

D. Wednesday 20 November

E. Thursday 21 November

Answer 4

D. Wednesday 20 November

The trial is due to begin on Tuesday 26 November. Trial Bundles must be filed by the claimant not more than 7 days and not less than 3 days before the start of the trial (CPR 39.5(2)). Trial is an “event” and so when counting time (CPR 2.8) this date and the day on which the period begins must be excluded. Days means clear days. The last date on which the trial bundles can be filed is less than 5 days so Saturday and Sunday must also be excluded (CPR 2.8(4)). The trial bundle must therefore be filed at court by Wednesday 20th November. Although counting time is not dealt with in the ‘preparation for trial and trial’ element, this question serves as a reminder that there are time limits and deadlines throughout civil proceedings, including pre-trial, and therefore the counting time rules are just as applicable here.

Question 5

At the pre-trial review, what direction MUST the court give on listing?

A. Evidence of experts

B. Evidence of witnesses of fact

C. Fix the trial date

D. Preparation of trial bundles

E. Trial timetable

Answer 5

C. Fix the trial date

The guidance on directions the court must give on listing include that the court will fix the trial date (or confirm the date already given)( PD29). It must also give a time estimate for trial and fix the place of trial. The directions the court may give on listing include provision about: evidence (in particular that of experts or other special arrangements), a trial timetable, the preparation of trial bundles and any other matters required to prepare the case for trial.

Question 6

Who normally prepares the trial bundle?

A. Every party

B. Claimant

C. Court

D. Defendant

Answer 6

B. Claimant

Question 7

What usually occurs after the claimant’s opening speech at trial?

A. Claimant’s re-examination

B. Closing speeches

C. Defendant’s cross-examination

D. Defendant’s evidence in chief

E. Claimant’s evidence in chief

Answer 7

E. Claimant’s evidence in chief

After the claimant’s opening speech, evidence will be called on behalf of the claimant. Such evidence may include the evidence of witnesses (of fact and experts), real evidence and documentary evidence. The witness statement of a witness will stand as the evidence-in-chief of that witness (unless the court orders otherwise)( CPR 32.5(2)). The witness will therefore often take the stand and simply confirm that it is his/her/their evidence after which the witness will be cross-examined by the defendant’s counsel and re-examined by their own counsel. The defendant’s case follows the claimant’s case with closing speeches at the end.

Question 8

When addressing in court a High Court Judge, which of the following is in-keeping with court room etiquette?

A. Would you like me to provide a summary of the facts?

B. Would My Lord / Lady like me to provide a summary of the facts?

C. Would Your Honour like me to provide a summary of the facts?

D. Would Your Highness like me to provide a summary of the facts?

Answer 8

B. Would My Lord / Lady like me to provide a summary of the facts?

Question 9

Judgment is given on 6 March against the Defendant in the sum of £10,000. The judgment is silent as to by when this must be paid. By when must it be paid?

A. It is not possible to say- clarification from the court will be required.

B. 20 March

C. 18 March.

D. 13 March

Answer 9

B. 20 March

Unless otherwise specified, parties have 14 days to comply with a judgment or order for the payment of money (CPR 40.11).

Question 10

A judgment is obtained in the sum of £3,000 (the claim has nothing to do with the Consumer Credit Act 1974). The judgment creditor wants to enforce this by taking control of the debtor’s goods. In which court(s) can this judgment be enforced?

A. County Court only

B. County Court or High Court

C. It is not possible to enforce a judgment in the sum of £3,000 by taking control of goods.

D. High Court only

Answer 10

B. County Court or High Court

Sums of £5,000 or more must be enforced in the High Court. Where the sum is less than £600 or arises out of an agreement regulated by the Consumer Credit Act 1974, it must be enforced in the County Court. In between these financial limits, it can be enforced in either court.

Question 11

Will an order to obtain information from a judgment debtor under CPR 71 always contain a penal notice?

A. Yes, a penal notice will be included to ensure the judgment debtor understands that they will be asked to answer questions under oath.

B. A penal notice will only be included if the judgment debtor’s assets are located abroad, as enforcement will be more difficult in these circumstances.

C. A penal notice might be included if it is anticipated that the judgment debtor might not comply, but this is not a requirement.

D. Yes, this is a requirement so that the judgment debtor can be imprisoned or fined if they do not comply with the order to attend court and answer questions.

E. No. A penal notice will not be required.

Answer 11

D. Yes, this is a requirement so that the judgment debtor can be imprisoned or fined if they do not comply with the order to attend court and answer questions.

Question 12

In respect of the hearing following the order to obtain information from a debtor…

A. The hearing will be without notice and the debtor will not be notified of the date when it happened until afterwards.

B. The debtor will be given at least 3 days’ notice of the date of the hearing when they must attend court.

C. The debtor will be given at least 14 days’ notice of the date of the hearing when they must attend court.

D. The debtor will be given at least 28 days’ notice of the date of the hearing when they must attend court.

E. The debtor will be given at least 7 days’ notice of the date of the hearing when they must attend court.

Answer 12

C. The debtor will be given at least 14 days’ notice of the date of the hearing when they must attend court.

Question 13

When is the best time to first consider / investigate an opponent’s means?

A. Upon receipt of the opponent’s precedent H (budget)?

B. Upon receipt of a defence

C. Before commencing proceedings

D. Before deciding what steps to take to enforce a judgment.

Answer 13

C. Before commencing proceedings

You need to investigate this at the outset – it is a pre-action consideration. To consider / investigate this only after commencing proceedings is too late, because by that time, your client is bound into proceedings.

Question 14

A significant advantage of an order to obtain information in comparison with asking for information by correspondence is…

A. The court’s expertise is harnessed to determine appropriate questions.

B. The debtor might be fined if they refuse to cooperate.

C. The court has a record of the debtor’s answers.

D. It is quicker and more cost effective.

Answer 14

B. The debtor might be fined if they refuse to cooperate.

An order to obtain information will usually include a penal notice so that the debtor can be committed (ie imprisoned) or fined if they refuse to attend court or to comply with the investigation.

Question 15

Companies House is useful when it comes to investigating a company’s ability to satisfy a judgment because…

A. …companies are required to file returns disclosing ability to pay any judgment entered against them.

B. …it has a register of directors against whom the judgment creditor may then wish to enforce the judgment, including useful details like their address.

C. …it keeps annual accounts for registered companies.

D. …it provides a credit rating in relation to registered companies.

Answer 15

C. …it keeps annual accounts for registered companies.

. Companies House does not provide credit ratings (but other organisations do, and this can be useful). Companies are not required to file returns in relation to their ability to pay any judgments. Companies House does keep a register of directors, but a judgment against a company cannot simply be enforced against a director – directors are not responsible for the debts of the company they direct.

Question 16

If using Taking Control of Goods to enforce a debt of £4,500 …

A. You would need to issue a warrant of control in order to commence these enforcement proceedings in the High Court to enforce this debt.

B. You would need to issue a writ of control in order to commence these enforcement proceedings in the County Court to enforce this debt.

C. You would have to use the County Court to enforce this debt.

D. You could use either the County Court or High Court to enforce this debt.

E. You would have to use the High Court to enforce this debt.

Answer 16

D. You could use either the County Court or High Court to enforce this debt.

For debts of between £600 and £5,000 such as this, the judgment creditor has a choice of using either the County Court or the High Court as set out in the High Court and County Courts Jurisdiction Order 1991.

Question 17

A judgment debtor has the following assets: a house valued at £500,000 which is mortgaged and owned jointly with their spouse, a salary of £100,000 per year from their employer ABC Limited, a company car worth £25,000 from ABC Limited and a collection of vintage books valued at £50,000.

Which of the following would be the best approach to enforce a judgment debt of £75,000?

A. Taking Control of Goods against the car and an attachment of earnings order for the balance owed of £50,000.

B. Taking Control of Goods against the book collection and an attachment of earnings order for the balance owed of £25,000.

C. An attachment of earnings order against the salary from ABC Limited

D. A charging order against the house as the equity in this asset would likely be able to cover the full debt meaning only one set of enforcement proceedings would be necessary.

E. Taking Control of Goods against the book collection and car.

Answer 17

B. Taking Control of Goods against the book collection and an attachment of earnings order for the balance owed of £25,000.

TCG against the book collection should quickly realise up to £50,000 and the balance can be paid in instalments by deductions from the judgment debtor’s salary from ABC Limited. The house is mortgaged so this charge will stand in front of the current debt, and jointly owned which might prevent an order for sale. The car belongs to ABC Limited so is not an asset that can be used.

Question 18

Which of the following statements about insolvency proceedings is correct?

A. A petition to wind up a company can be issued when the judgment debt against them is more than £5,000.

B. A petition for bankruptcy can be issued against a company when the judgment debt against them is more than £750.

C. If a bankruptcy order is made, the debt owed to the judgment creditor who brought the insolvency proceedings and issued the petition will be paid first.

D. A petition for bankruptcy can be issued against an individual when the judgment debt against them is more than £5,000.

E. If a statutory demand is served, the judgment creditor is prevented from going on to issue a bankruptcy petition against the judgment debtor.

Answer 18

D. A petition for bankruptcy can be issued against an individual when the judgment debt against them is more than £5,000.

Question 19

An application for permission to appeal …

A. Must be made to the Court of Appeal.

B. Can be made at the lower court or to the appeal court but cannot be made to both of these courts.

C. Can be made at the lower court or to the appeal court or to both of these courts in turn.

D. Must be made at the lower court.

E. Must be made to the appeal court.

Answer 19

C. Can be made at the lower court or to the appeal court or to both of these courts in turn.

The appellant has a choice and an unsuccessful application to the lower court does not preclude a further application for permission to the appeal court (CPR 52.3(2)).

Question 20

Permission to appeal will only be granted where the court considers that:

A. The appeal would have an extremely high prospect of success or there is some other compelling reason why the appeal should be heard.

B. The appeal would have an extremely high prospect of success and there is some other compelling reason why the appeal should be heard.

C. The appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

D. The appeal would have a real prospect of success and there is some other compelling reason why the appeal should be heard

E. The case raises an important question on which further argument and a decision of the appeal court would be to the public advantage.

Answer 20

C. The appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

Confirms that this is the applicable test for the court when considering whether to grant permission to appeal.

Question 21

An appeal against the decision of a County Court Circuit Judge will be heard by a…

A. High Court Master.

B. County Court District Judge.

C. Lord Justice in the Court of Appeal.

D. County Court Circuit Judge.

E. High Court Judge.

Answer 21

E. High Court Judge.

Question 22

A claimant succeeds in a professional negligence claim against a defendant company. Judgment is for £80,000 plus costs of £35,000. The defendant company refuses to pay the judgment, indicating that it has no money to do so. The claimant believes the defendant has substantial cash in the bank. What is the best way for the claimant to receive confirmation as to whether this is the case?

A. Apply for a High Court Execution Officer to make enquiries as to the defendant’s assets.

B. Draw the defendant’s conduct to the court’s attention in relation to costs.

C. Apply for a witness summons in relation to the defendant.

D. Apply for specific disclosure of documentation in relation to the assets.

E. Apply for an order that a representative from the defendant should attend court to answer questions about the assets.

Answer 22

E. Apply for an order that a representative from the defendant should attend court to answer questions about the assets.

This procedure where the court becomes involved and which is also known as oral examination of a debtor (CPR 71) would be the best way. Neither specific disclosure nor a witness summons is appropriate now that the proceedings have concluded. The court does not have a costs decision to make, and therefore drawing the defendant’s conduct to the court’s attention in relation to costs is not going to help. An execution officer is not used to make enquiries as to the defendant’s assets.

Question 23

The High Court allows a claim for breach of statutory duty in reliance on an interpretation of legislative provision which is irreconcilable with an earlier, binding Supreme Court decision.

Does the Defendant have good grounds for an appeal in relation to the finding in favour of the claimant?

A. No, because the grounds for an appeal are not made out.

B. No, because the decision related to the common law which is decided on a case-by-case basis.

C. Yes, because the decision of the court was unjust.

D. Yes, because the decision was beyond the power of the court.

E. Yes, because the decision of the court was wrong.

Answer 23

E. Yes, because the decision of the court was wrong.

An appeal court will allow an appeal where the decision of the lower court was wrong or unjust (CPR 52.21(3)). The clearest ground here is that the court’s decision was wrong, because it contained an error of law – an unsustainable interpretation of statute. There is nothing on the facts to suggest that the lower court exceeded its powers. The decision did not really relate to the common law, it related to the interpretation of statute, but either way, such decisions can be appealed if the grounds are established.

Question 23

The claimant is considering enforcement of a judgment of £30,000 against a defendant which is a limited company. The defendant operates its business from rented offices. The defendant has a fleet of vans (not subject to finance) as well as £6,000 in the bank, and approximately 12 employees. The defendant’s customers owe it in excess of £45,000 (made up of around 60 customers that each owe between £500 and £1,000).

Which of the following do you consider to be the most suitable method of enforcement to use first in these circumstances?

A. Present a bankruptcy petition.

B. Charging Order

C. Taking Control of Goods Order

D. Attachment of Earnings Order

E. Third Party Debt Order

Answer 23

C. Taking Control of Goods Order

This is the best option on the facts and should be effective against the fleet of vans which will have sufficient value to make this worthwhile. In terms of the incorrect answers, a charging order is applied to property, but this is not an option for rented premises. An attachment of earnings order is applied to an individual defendant’s salary – not to a defendant which is a limited company (and which is paying salaries, not receiving a salary). A Third Party Debt Order could be used to ensure the claimant receives the amount owed by the defendant’s customers when paid, but this is not practicable / possible when you are faced with many small debts (not any big ones).

Question 24

In finding for the defendant in a breach of contract claim the judge says the following in their judgment:

‘The claimant must accept responsibility for the slogan it used when marketing the goods, ‘’Better than anything else you can buy – guaranteed’’. This was not an invitation to treat or a ‘mere puff’ but, in my judgment, became a contractual term.’

What is the most appropriate ground for appeal for the unsuccessful claimant?

A. The judge’s decision was unjust.

B. The judge’s decision was wrong because they erred in law.

C. The judge’s decision was unjust due to a serious procedural irregularity.

D. The judge’s decision was wrong because they erred in fact.

E. The judge’s decision was unjust due to an ‘other’ procedural irregularity.

Answer 24

B. The judge’s decision was wrong because they erred in law

See the element ‘Appeals (solicitor)’ and your materials from your study of contract law prior to this module.

Question 25

At the conclusion of a fast-track trial on Monday 5 November, the court gives judgment for the claimant in the sum of £18,000. The order is subsequently drawn up by the court on Wednesday 7 November, and received by the defendant (in the post) on Friday 9 November. By when must the defendant pay the judgment sum (unless ordered otherwise)?

A. Monday 12 November

B. Wednesday 14 November

C. Monday 19 November

D. Friday 16 November

E. Wednesday 21 November

Answer 25

C. Monday 19 November