W9 - Trial, Enforcement & Appeals

When should you consider a party’s means to pay

At the outset of proceedings

How will C’s evidence be given? - process/ stages

• their evidence in chief?

• They will then…

• Then …. (With..)

• And finally can …(with…)

• witness statement (is their evidence in chief)

• Will take the stand and confirm the contents (wont be questioned)

• Will then be cross examined by opposition barrister. (Leading Qs)

• Can then be re-examined by her own barrister. (Non-leading Qs)

How do you ask the court for permission to have expert evidence?

• doc name/ number?

• Include?

The application can also be made by….

But first you should already check…

Can request this direction in the pre-trial checklist (N170) for experts to give oral evidence

• including application notice

• + draft order

Consent, if both parties agree.

Case directions order; to see if you already have permission given.

How many bundles needed?

• 1 for each party

• 1 for court

• 1 for witnesses

(Aka 4 if 2 parties)

Who is responsible for producing the trial bundles?

Unless…

Claimant

(Unless litigant in person & D represented → then D would produce)

When must trial bundle be filed by?

& remeber counting time rules (X3)

• no less than 3 clear days before trial hearing

• No more than 7 clear days before it.

~ Don’t incl day on which the period begins

~ Don’t incl ‘event’ day (trial)

~ Period of 5 days/ less - dont incl weekends

Some things need to prepare for trial? (X7)

• trial bundle incl case summary

• Skeleton arguments

• List of authorities

• Reading list

• Witness summons (to secure attendance)

• Brief counsel

• Pre-trial conference with counsel (& maybe witnesses)

When does list of authorities need to be submitted by?

5pm the day before

In the run up to trial, it will also be important to re-consider

Settlement

How to address district judges/ deputy district judges?

Judge

How to address recorders?

Your honour

How to address circuit judges?

Your honour

How to address HC master?

Judge

How to address HC judges + above! (I.e. CA/ SC)

My Lord/ Lady

(1st) Appeal from district judge in CC

Goes to circuit judge in CC

(1st) Appeal from HC Master or district judges in HC

To HC judge

(1st) Appeal from Circuit judge in CC

To HC judge

(1st) Appeal from HC judge

To CA

2nd appeals

Generally go to CA

(Unless in CA , then → SC)

(1st Appeal) can appeal straight to the CA in …

Exceptional circumstances only

Deadline for notice of appeal

21 days after date of decision of lower court

(Unless court directs otherwise)

Test court applies re whether to grant permission to appeal?

• 1st appeal?

• 2nd appeal?

First appeal

1. Real prospect of success, or

2. Some other compelling reason why appeal should be heard

Higher threshold

• real prospect of success, AND

• Raises important point of law/ practice, OR

• SOCR

Grounds for appeal/ what test will the court apply to determine whether the appeal should succeed?

Decision of the lower court was…

1. Wrong, or

2. Unjust

Bc of a serious procedural/ other irregularity

What form will appeal hearing take?

Review rather than rehearing (defualt)

What will court do if request by party to admit fresh evidence on appeal?

• default

• new evidence will not be admitted

• But have discretion, in accordance w OO

Fresh evidence will not be allowed by the court unless….

• it could not have been obtained w reasonable diligence for use in the lower court

• Would probs have an important influence on the result

• Seems credible

Where a lower court refuses an applic for permission to appeal, can a further applic be made to the appeal court?

Yes

Most appropriate enforcement method if cash in bank for C to get to pay damages/ costs owed by D?

Advantage?

Disadvantage?

3rd party debt order (to bank, to pay £ to C instead of i.e. D)

Can bypass the D. Can be quick.

You dont know how much money is in the bank account at the date of order (i..e CH accounts are annual!)

Can you apply for 3P debt order against a joint account?

No!

Unless judgment is against joint parties?

Can only get a 3P debt order if you know…

Know details of the bank account.

Most suitable enforcement method for property?

Disadvantages of this?

Get a charging order.

Mortgage/ charge on property (even sometimes more could be owed on this than the value in the property!!)

Could be quite slow to realise cash (from sale)

If an appeal is made, when is an appellant’s notice required?

In every case; must be filed.

Amount of sums and where they should be enforced (what court?)

£5000/more - MUST —> HC

In between = either HC/CC

Less than £600 → MUST CC

/OR (agreement regulated by CCA)

Is a penal notice required in an order to obtain information from a judgment debtor (JD)?

Yes always - it is a requirement

• JD can be imprisoned/ fined if they dont comply w order to attend court/ answer Qs

• (Think COC!)

Order to obtain information

• what?

• Can it be sought for indiv/ company?

• What sort of Qs

• attend court & answer Qs

• Yes both,

• Standard list sometimes (for court officer?) + re income/ assets

What is special about service of the order requiring the officer to attend court?

(Officer of co???)

It is served personally

How much notice must the JD be given of the date of hearing when they must attend court following order to obtain info?

At least 14 days’ notice of date of hearing (when must attend)

Appropriate enforcement action for assets owned outright?

Disadvantages?

Taking control of goods

Could be quite disruptive to other party

Document required in HC for TGC

A writ of control

Document required in CC for TGC

• warrant of control

When must enforcement officer give notice to the JD of enforcement?

At least 7 clear days before entering premises/ taking control of goods

After enforcement officer has given notice, how long does EO have to take control of JD’s goods

But…

12 months from date of giving notice

EO does not have to specify when w/in this time frame they will attempt to take the goods.

Alternative to removing goods (TCG)?

• the JD…

• Despite…

• Incls…

• Aka:

A controlled goods agreement with JD

• JD retains custody/ use of goods, pending payment of debt

• (Despite EO tracking control)

• Incls terms

• Aka: last chance to pay up before losing their goods

General restricitons on when EO cannot take control of goods?

• before 6am/ after 9pm

• When child/ vulnerable person =only person present

What if foreign property i.e. in France

• look to applicable regime & relevant rules here re UK enforcement of this

  • If so → Follow these

• If not → depends on law of country involved (+get national lawyers involved)

(Following brexit; no longer EU laws on this)

Form no. For application notice for 3P debt order

Form N349

How is interim order for 3P debt order obtained?

W/o notice to the JD

Obligation on 3P for 3P debt order

• search; to identify all accounts held by JD

• Disclose info (account details) → court/ JC

When can a petition for bankruptcy against an indiv be issued?

When the judgment debt against them is more than £5k

A charging order - procedure

2 stages;

1. Interim charging order

2. → final charging order

A charging order - usually combined with…

Order for sale

Attachment order - only available in?

• Where?

CC

Amount is £50/ more

(For individual- their salary)

Petition for insolvency can be issued against a company where…

The judgment debt against them is more than £750!

Best practice in insolvency procedure, prior to petition being issued? JC should…

The if the debt remains…

The court can then presume…

• Serve a stautory demand on the JD

• Unpaid for 21 days after serving the SD,

• → court can presume they are unable to party their debts (a ground for insolvency)