Civil - Appeals and Enforcement
Terms
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- What CPR deals with Appeals?
- 52
- What Practice Directions deal with Appeals?
- 52A - 52E
- Is there an automatic right of appeal?
- No
- When will an higher court allow an appeal from a lower court?
-
Where the lower court's decision:
(1) was wrong; or
(2) was unjust because of a serious procedural or other irregularity - Appeals are re-hearings of the matter in question?
- False - appeals review the lower court's decision on the evidence and representations
- When will the appeal court allow a re-hearing?
- If a PD allows for that or if it would be in the interests of justice.
- Fresh evidence not made available to the lower court can be made available to the appeal court?
- False, unless the appeal court orders otherwise (CPR 52.11(2))
- What must decisions related to the admission of new evidence be taken in light of?
- The overriding objective.
- What is the general rule regarding appeals?
-
(1) you need permission to appeal; and
(2) you have 21 days from the original decision to appeal - In what circumstances can a lower court transfer a first appeal directly to the Court of Appeal? Auth?
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Where:
(1) the appeal will raise an important point of principle or practice; or
(2) there is some other compelling reason for the CA to hear it. - In what circumstances will permission to appeal be granted?
-
(1) where the appeal would have a reasonable prospect of success; or
(2) some other compelling reason why the appeal should be allowed. - What case provides that a reasonable prospect of success means realistic rather than fanciful?
- Swain v Hillman
- CASE: Swain v Hillman
- A reasonable prospect of success means realistic rather than fanciful?
- When kind of respondent needs to file a notice?
-
(1) A respondent who wishes to upload the decision of the lower court, but for different reasons; and
(2) A respondent who wishes to ask the appeal court to vary the order of the lower court. - What is the effect of an appeal on the judgment of the lower court?
- Initiating an appeal does not automatically stay execution on any judgment obtained in the lower court. A stay will not be ordered unless there is good reason (for example, financial ruin).
- Who is a judgment debtor?
- The person who owes the money
- Who is a judgment creditor?
- The person who wants the money
- How might you go about investigating the debtor's means?
-
Company search
Land Registry search
Instruct an enquiry agent - When do you need to investigate the debtors means?
- Investigations should take place at the outset of the matter, be update throughout and repeated at the end of the action in order to work out the most effective method of enforcement.
- If you're struggling to find out the debtor's means, what can you do?
-
Obtain and order for information from the judgment debtor (CPR 71).
Downsides - alerting the judgment debtor to enforcement action - Can an application for an order to obtain information be made without notice?
- Yes
- What must an order to obtain information contain? Auth?
- A 'penal notice' - (CPR 71.2(7))
- How must the order to attend court be served and when?
- Must be served personally on the person ordered to attend not less than 14 days before the hearing (CPR 71.3(1))
- Where tangible goods exist, what means of enforcement should be used?
- Take Control of Goods (TCG)
- What goods are exempt from a TCG?
-
Tools of the debtor's trade;
Clothing;
Bedding;
Furniture; and
Essential household items. - What are the threshold implications for the purpose of bringing a Taking Control of Goods means of enforcement?
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Up to £600 > CC only
Between £600 - £5000 > CC or HC
More than £5000 > HC only - What are the documents to be issued in the High Court vs County Court to commence a Taking Control of Goods means of enforcement?
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HC - Writ of control
CC - Warrant of control - What document entitles the Enforcement Officer (EO) to seize and sell the judgment debtor's goods?
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HC - Writ of control
CC - Warrant of control - What are the four stages of a Taking Control of Goods means of enforcement post obtaining the writ or warrant?
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1. Giving notice to the JD;
2. Entering and securing the goods;
3. Notice of entry (including inventory); and
4. Sale of the goods - What is a third party debt order?
- This can be used to compel the payment of funds due to the judgment debtor, however, payment will be made to the judgment creditor
- When is a third party debt order appropriate?
- When there is a 'debt due or accruing due' to a judgment debtor in the jurisdiction
- Describe the order of service in relation to a third party debt order? Auth?
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(1) Interim order without notice to judgment debtor - served on 3rd party;
(2) Interim order served on JD
(3) Notice hearing (JD and 3rd party - if wish)
(4) Court decides whether to make final order requiring payment. PD 72 - Describe a charging order?
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(1) A charging order is a form of charge over land;
(2) The order secures a judgment debt;
(3) Does not therefore produce any money unless an Order for Sale is made.
- Describe an attachment to earnings order? Auth?
- Employer required to make deductions from employee's wages to be paid into court for onward transmission to judgment creditor.
- Describe the two kinds of insolvency.
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(1) bankruptcy for individuals;
(2) winding up for companies - What simple and low cost step can a judgment creditor take before issuing insolvency proceedings?
- Send a 'Statutory demand' to the judgment debtor. Failure to pay within 21 days give rise to the risk that the court will presume the judgment debtor unable to pay and therefore insolvent.
- If the judgment debtor's property is subject to a fixed charge, what should you say?
-
Fixed charge holder would obtain priority over any charge the client could obtain.
This method could prove time consuming and costly. - If you're given facts that indicate a TCG means of enforcement might be appropriate, what must you do?
- Identify whether a writ/warrant of control is appropriate based on the value of the asset.
- A Third Party Debt Order can be secured over a bank account that's in overdraft?
- FALSE because the individual would owe the debt to the bank.