DR - Trial and Enforcement

What is a consent order?

- A court order that records the settlement between parties

- Eliminates the need for the court to hear arguments from both sides

What are the two types of consent orders?

1. Consent order based on a contract:

- Evidence of the contract between parties

- Rarely interfered with by the court

2. Consent order NOT based on contract:

- parties agreeing terms of settlement in the claim

- May be altered or varied by the court

What is a potential defence if fresh proceedings are brought regarding matters in a consent order agreement?

- defence of estoppel may be available if fresh proceedings are brought regarding matters in the agreement

- although this depends on the exact wording of the agreement

What is a Tomlin Order?

- A type of consent order, allowing for more privacy

- Made up of 2 parts: public part and confidential part containing details of the agreement

When is a Tomlin Order generally used?

- When parties wish for key settlement terms to be confidential

and/or

- When agreed settlement terms go beyond what the court could generally order as part of the proceedings

What are the characteristics of Part 1 ('Order') of a Tomlin Order?

- Looks like any other consent order

- Public

What are the characteristics of Part 2 ('Schedule') of a Tomlin Order?

- Generally confidential

- Contains terms of agreement - enforceable with a further court order

- Enables parties to include provisions beyond limits of the dispute (eg one party giving another a discount in future, not just damages)

What must be contained in Part 1 of a Tomlin Order?

- Any direction for payment of money out of court

- Actions to be taken by the court such as:

a) Stay of proceedings

b) Permission to apply

c) Detailed assessment of costs

How is a consent or Tomlin Order put in place?

- Requires court's approval

- Parties apply to the court to have the order made

- Once made, the order takes effect like any other court order

- If settlement is reached during a stay, the application for the consent/Tomlin order is treated as an application to lift the stay

How is a settlement recorded before proceedings are issued?

- No need for consent order or Tomlin order

- Parties record their agreement in a settlement agreement (a form of contract)

- Requires careful drafting to reflect parties' agreement

- Particular care needed to define the scope of the dispute being settled

How can consent orders be used for extensions of time?

- For extensions up to 28 days, no court application is usually needed, can be agreed between parties

How can consent orders be used for extensions of time over 28 days?

- Application to court is required

- Consent order is drawn up recording the agreement

- Consent order is filed at court

- Court is usually invited to consider the application on paper without a hearing

Can consent orders be used to settle interim orders?

Yes, can settle entire claims AND interim orders

Is a consent order required for settlement before proceedings have been issued?

- no, in this case a settlement agreement would be used instead

Is the court obliged to approve a consent order for an interim application?

- No - it is a case management decision

- Approval is more likely when parties are agreed

What is the pre-trial checklist?

- court will usually give directions about when a pre-trial checklist, form N170, is to be filed

What is the purpose of the pre-trial checklist?

- check that the case management directions have been complied with and that the case is ready for trial

- give any further necessary directions

- fix a date for trial (or confirm a date that has already been fixed).

When will the pre-trial checklist be sent to the parties?

at least 14 days before the due date for filing.

When will the pre-trial checklist be due?

at least eight weeks prior to the trial date or the start of the trial period

What directions MUST the court give after the pre-trial checklist has been filed?

- the court will fix the trial date (or confirm the date already given)

- the court will give a time estimate for trial; and

- the court will fix the place of trial.

What directions MAY the court give after the pre-trial checklist has been filed?

- 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.

Who is responsible for filing the trial bundle?

Claimant

- unless C is a litigant in person, and D is represented, in which case, D will prepare and file it

Does all the information in the trial bundle need to be agreed?

- Its content should be agreed where possible

- If there are disagreements, a summary of disputed points

should be included

When does the trial bundle need to be filed?

- must be filed no more than seven days and no less than three days before the trial begins

How is time counted for the bundle deadline?

- day of trial will not be included in counting

- the day on which the period begins is not counted

- weekends do not count when counting the 3 day deadline, but they WILL be counted when counting the 7 day deadline

What should be included in a trial bundle?

- Claim form and all statements of case

- Case summary and/or chronology where appropriate

- Requests for further information and responses

- All witness statements to be relied on as evidence

- Any witness summaries

- Any hearsay notices

- Notices of intention to rely on specific evidence

- Medical reports with responses

- Experts' reports with responses

- Any order giving directions for the conduct of the trial

- Any other necessary documents

Who gets a copy of the trial bundle?

claimant gives this to:

- defendant

- judge

- all witnesses

What is a reading list?

- Sets out an estimate of the reading time the judge needs to understand the case and relevant authorities

- including estimated hearing length

- signed by all advocates

When is a reading list required?

Required in all High Court cases in the Chancery Division and the King's Bench Division

What are skeleton arguments and when are they required?

- Concisely summarize the submissions to be made

- Required for High Court trials

What are the requirements for authorities in High Court cases?

- A list of authorities must be submitted to the court by 5pm the day before the hearing

- Enables copies of relevant law reports to be brought into court

- Usually agreed and exchanged with the other side

What should be done if a case settles before trial?

- Parties must notify the listing officer for the trial court immediately

- Allows court to allocate time to other cases

- Failure to notify may result in cost penalties

What are notices to admit facts/documents?

- Asking the other party to admit a particular factual point in issue

- Can help avoid calling evidence to prove the point at trial

- Failure to admit a fact later proven can lead to cost consequences

How can reluctant witnesses be compelled to attend trial?

- By issuing and serving a witness summons in Form N20

- Can require witness to attend to give oral evidence, and to produce specified documents

What is the practical benefit of a witness summons?

- Must provide basic expenses for witness if bringing them to court via a witness summons

- more likely for employer to release them

Is permission needed from the court for an expert to give oral evidence at trial?

Yes

- parties can request a direction that expert can give oral evidence in the pre-trial checklist

What is the typical order of events at a trial?

- Claimant's opening speech

- Claimant's case (witnesses then expert evidence)

- Defendant's case (witnesses then expert evidence)

- Defence closing speech

- Claimant closing speech

- Judgment and final orders

What happens during the claimant's case?

1. Evidence called on behalf of the claimant

2. Witness statements stand as evidence-in-chief

3. Defendant's counsel may cross-examine witnesses

4. Claimant's counsel may re-examine on matters covered in cross-examination

What happens during the defendant's case?

- Defence calls its evidence

- Witness statements generally stand as evidence-in-chief

- Claimant's counsel may cross-examine witnesses

- Defendant's counsel may re-examine on matters covered in cross-examination

When are leading questions allowed?

- cross-examination only

What are judgments and final orders?

- Orders that end the claim

- May order defendant to pay damages

- Include provision for costs

- Can be made after trial or in accordance with CPR for earlier judgments

How is judgment delivered after a trial?

- May be handed down immediately or reserved for a later date

- Judgment is not public until handed down

- Parties make costs submissions after judgment is given

What happens when judge circulates draft judgment to the parties' legal representatives?

- Judge may circulate draft judgment to parties by 4pm on second WD before formal hand-down

- Parties can prepare costs submissions and point out

obvious errors

What is a disposal hearing?

- Assesses level of damages after liability is determined

- Used when evidence on liability differs from evidence on quantum

How are judgments and orders drawn up and served?

- Court usually draws up the order

- Party may draw up order if directed or agreed

- Must be filed within 7 days of becoming responsible

- Sufficient copies for all parties must be filed

- Court seals and serves the order

- Rules may differ in specialist divisions

When does a judgment or order take effect?

- Effective from the date given or made, not served

- Interest starts running from date of judgment

What is the time limit for compliance with a judgment?

- 14-day time limit for compliance from date of judgment, unless otherwise specified

- (not when judgment was received by D)

- Court may allow stay of execution in certain circumstances

What is the Debt Respite Scheme?

- Allows individual judgment debtors to request 60-day 'breathing space' (not for companies)

- Creditors must stop enforcement actions during breathing space

- Special provisions for debtors with mental health crises

Which judgments are not included in the Debt Respite Scheme?

- Excludes judgments for damages for death or personal injury

- Excludes judgments against companies, scheme is only for individuals

How should opponent's representatives be addressed?

- 'my learned friend' if a barrister

- or 'my friend' if a solicitor.

What are enforcement proceedings?

- Steps taken post judgment by the successful party

- To obtain payment from the unsuccessful party (judgment debtor)

- Necessary when the losing party fails to pay damages voluntarily

What is an order to obtain information from the judgment debtor?

- A court order requiring the judgment debtor or an officer of a company to attend court in order to provide information about the judgment debtor's means

- Default set of questions carried out by court officer or judge

- Also known as 'oral examination of a debtor'

What is the procedure for obtaining an order to obtain information from the judgment debtor?

- Application can be made without notice to the judgment debtor, but they will be given notice of the actual date

- Order must contain a 'penal notice', stating non-compliance will result in contempt of court

- (no penalty for failing to provide information via correspondence)

When must an order to obtain information from the judgment debtor be served?

Must be served personally on the person to attend court at least 14 days before the hearing

What should be considered when choosing a court for enforcement?

- Some methods are only available in specific courts (County Court or High Court)

- Proceedings may need to be transferred for enforcement purposes

In which court are attachment of earnings orders available?

only in County Court

What is the threshold for enforcement in the High Court?

Sums of £5,000 or more must be enforced in High Court

Which sums must be enforced in County Court?

- Sums less than £600

- or from Consumer Credit Act 1974 agreements

must be enforced in County Court

Which sums can be enforced in either HC or CC?

£600 - £4,999 can be enforced in either court

What are the main sources of information about the debtor's means?

- Your client, who often has detailed knowledge of their counterparty

- Company searches

- Official copies from the Land Registry

- Searches against other relevant registers

- Reports from enquiry agents

What are enquiry agents?

- Private investigators who can procure extensive information on individuals or companies

- Should use a reputable firm to avoid misconduct being imputed to the solicitor

- last resort - order to obtain information is a better option

What information can be obtained from company searches?

- Extensive financial information about the company's general solvency

- Information about the company's assets

- Whether those assets are charged

What are the key registers that can be useful for enforcement proceedings?

- Land Charges Registry

- Individual Insolvency Register

- Attachment of Earnings Order Index

- The Register of Judgments, Orders and Fines

What information does the Land Charges Registry provide?

- Helps determine if there is any equity in a property owned by the debtor

- Assists in deciding if an order for sale would be possible

What information does the Individual Insolvency Register contain?

- Lists people who have been made bankrupt

- impacts which enforcement methods will be effective

What is the Attachment of Earnings Order Index?

- Shows debtors against whom there are attachment of earnings orders in force

- Helps determine if this method of enforcement is already being used against the debtor

What information does the Register of Judgments, Orders and Fines provide?

- Shows previous CC and HC judgments and ongoing enforcement proceedings against the debtor

- Shows the debtor's name, address, and amount of outstanding debts

Will a County Court judgment remain on the Register of Judgments, Orders and Fines even after it has been paid?

- if paid within 1 month, entry on the register may be cancelled at the judgment debtor's request

- if paid after 1 month, judgment debtor may obtain a certificate of satisfaction to show the amount due has been paid

- but the judgment will remain on the register

What factors should be considered about the opponent in enforcement proceedings?

- Whether they are legally aided

- Possibility of asset dissipation

- If they are insured for the risk involved

What is asset dissipation and how can it be prevented?

- Assets being disposed of or moved in anticipation of a judgment

- Can be prevented through measures like obtaining a freezing injunction

How does an insured opponent impact enforcement proceedings?

- They may be indemnified by their insurance company for damages and/or costs

- Payment may be more easily forthcoming to the judgment creditor

- Certain risks require compulsory insurance (e.g., employers' liability, motor insurance)

What considerations are important when dealing with other jurisdictions in enforcement?

- Whether the judgment debtor has assets abroad

- If enforcement of an English court judgment is needed in a foreign jurisdiction

- If a foreign court judgment needs to be enforced against assets in England and Wales

What are the key points about enforcement regimes in different jurisdictions?

- The UK is signatory to various conventions and treaties facilitating judgment enforcement abroad

How does common law apply to enforcement of judgments across jurisdictions?

- Applies when no relevant regime is in place

- Generally makes enforcement of judgments more difficult

How can a foreign judgment be enforced in England and Wales when no relevant regime applies?

a new judgment from an English or Welsh court is needed

How can an English judgment be enforced abroad where no regime applies?

- the common law of the foreign country applies

What must the evidence for enforcing an English judgment in a foreign country include?

- Grounds on which the judgment was obtained

- Whether the defendant objected to the jurisdiction

- Proof that the judgment has been served

- Appeal details, including the date when the time for appealing expired

- Whether interest is recoverable on the judgment

What are the main methods of enforcement for money judgments?

- Taking control of goods (for moveable property)

- Charging orders (for real estate)

- Third party debt orders (where someone else owes them)

- Attachment of earnings orders (if they have a job)

- Insolvency proceedings (if they seem unable to pay)

What is Taking Control of Goods (TCG)?

- Procedure allowing an enforcement officer to seize a judgment debtor's goods

- Goods are sold to satisfy the judgment debt and expenses

- Goods must be owned by judgment debtor with no third party claims

How is an application for Taking Control of Goods order made?

Application made using standard interim application procedure

What goods are exempt from Taking Control of Goods order?

- Tools of the judgment debtor's trade (up to £1,350 in value, not exempt after this)

- Basic domestic items (clothing, bedding, furniture etc)

Which court should be used for TCG? (depends on value of debt)

Debt sum is £599 or less - Must use County Court

Debt sum £600 - £4999 - Can use either High Court or County Court

Debt sum is £5000 or more - Must use High Court

How is TCG applied for in the CC?

1. Request a Warrant of control including details about debtor's goods

2. Pay applicable fee

3. EO can take their charges from proceeds of sold goods

How is TCG applied for in the HC?

1. Request a Writ of control including details about debtor's goods

2. Pay applicable fee

3. EO can take their charges from proceeds of sold goods

What are the three overall stages of the TCG process?

1. Giving notice to the judgment debtor of enforcement

2. Entering premises and securing the goods

3. Sale of the goods

What happens in Stage 1 of TCG? (giving notice)

- EO writes to judgment debtor at least 7 clear days before taking control of goods

- Exact time of goods seizure not specified

- EO has 12 months from notice date to take control of goods

What happens in Stage 2 of TCG? (entering premises)

- EO may use reasonable force to enter premises if necessary

- Restrictions on process if in the presence of children

- EO must provide notice with details of actions taken

What is a Controlled Goods Agreement?

- An alternative to removing goods via TCG

- judgment debtor is permitted to retain custody (and use) of the goods, through agreement with the enforcement officer, pending payment of debt

- a last chance for debtor

What happens in Stage 3 of TCG? (sale of goods)

- Goods sold by EO unless judgment debtor pays

- EO must sell goods for best reasonable price, usually by public auction

- Sum specified in writ/warrant paid to judgment creditor from sale proceeds

- Any surplus funds returned to judgment debtor

What are Third Party Debt Orders?

- Used when a third party owes money to the judgment debtor, and court orders third party to pay judgment creditor directly

- can be used to take money directly out of debtor's bank account!

- Cannot be used for joint bank accounts with spouse

What is the procedure for Third Party Debt Orders?

1. Third party must disclose information to court and judgment creditor

2. Interim order made without notice to judgment debtor

3. Interim order served on third party, preventing payment to judgment debtor

4. Judgment debtor served with interim order

5. On-notice hearing held for final decision

What form is used for applications for Third Party Debt Orders?

Form N349

What are Charging Orders?

- Charge taken over land or specified assets to secure judgment debt

- Does not immediately produce money

- Remains until property sold by debtor

What are the disadvantages of a charging order?

- Subject to prior mortgages, charges, and co-owners' rights

- must sell the property in order to get the money (and may not be able to do so)

What is the procedure for a charging order over property?

1. interim order

2. final order

3. separate application needed for order of sale to force payment

What is the effect of an Attachment of Earnings Orders?

- Deductions made from judgment debtor's salary by employer

- Deductions paid to court for transmission to judgment creditor

Which debts are Attachment of Earnings Orders used for?

- Used for judgment debts of £50 or more

- Suitable for debtors in regular employment but few assets

- only for individuals, not for companies

What is the procedure for Attachment of Earnings Orders?

1. Judgment creditor applies using standard form

2. Application and reply form served on debtor

3. Court may make order without parties' attendance

4. Order served on debtor and employer

5. Employer makes deductions and pays to court

What problems can arise with Attachment of Earnings Orders?

- Debtor may change jobs

- Court may discharge order if debtor not in employment

- Delays possible if judgment debtor doesn't return reply form

- Process can lead to imprisonment of judgment debtor, but requires further hearings

How high do judgment debts have to be for a bankruptcy petition to be issued against an individual?

over £5,000