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Trial, judgment and enforcement - Coggle Diagram

- - - - drawing up an order means setting out formally to be sealed by court. court will draw it up unless court orders a party to draw it up, party with permission agrees to draw it up or court dispenses with need to draw it up or it is a consent order CPR 40.3
      - If a party is to draw up an order, required to file it no later than 7 days after becoming responsible for doing so, so court can seal it. if they fail to file it within time limit, any other party may do so instead
        
        must also file sufficient copies for service on themselves and other parties at the same time and once sealed, court will serve the sealed order on everyone CPR 40.4
    - - 'reserved judgment': judge will usually circulate the judgment in draft to parties in advance of formally handing it down (by 4pm on second working day before handing down) so parties can prepare cost submissions and provide judges with details of obvious errors. restrictions apply on what can be done with draft judgment before officially handed down
      - judgment/order effective from date given or made, not from date served (CPR 40.7)
        
        judgements will usually include an amount of interest awarded. once judgment given and claim concluded, interest starts to run on amount of judgement debt from the date judgement given (CPR 40.8). 8% per annum (S17 Judgments Act 1838)
        
        14 days to comply with judgment order or order for payment, unless otherwise specified by court (CPR 40.11)
        
        Court has discretion to allow stay of execution of judgment or order (ie. more time to pay or take steps ordered before enforcement possible) CPR 40.8A
    - - provides temporary protection from judgment/order for some judgment debtors (people who owe money from a judgment). allows an individual debtor (non-company) to approach a debt advice provider to ask for 'breathing space' of 60 days on basis they are unlikely to be able to repay their debts. if debt advice provider considers it appropriate then they can start breathing space via insolvency service which notifies debtor's creditors
      - during breathing space, judgment creditor must stop all enforcement action to recover the debt, stop interest, fees, penalties, and not contact the debtor (unless court gives permission)
      - judgements for death, PI is excluded from the scheme
      - longer breathing space may be provided to those in mental health crisis
- - - - error of law
      - error of fact
      - error in exercise of court's discretion
    - - a more onerous grounds to prove
      - examples: party being given no chance to make submissions, party's submissions or too much of their skeleton argument being incorporated into judgment, lower court having been involved in previous proceedings, the manner the judge handled evidence
  - - - done orally which saves time and cost and does not prevent later application to the appeal court
    - - done in writing, form N161, usually no hearing, more time to prepare the application, can pursue even if applied unsuccessfully at end of trial in person
    - - court may order differently (CPR 52.12(2)(a)) if a party has a good reason for seeking a longer period they can apply to lower court for extension 52 PD 3
    - - the appeal would have a real prospect of success or there is some other compelling reason why it should be heard
      - permission for CoA appeal granted where CPR 52.7
        
        the appeal would have a real prospect of success AND raise an important point of principle or practice OR there is some other compelling reason
  - - - applications for permission determined on paper alone, unless judge considers they should hear it orally and summon parties for a hearing CPR 52.5
    - - if appeal court refuses paper application, the appellant may normally request (within 7 days after service of the notice refusing) that the decision be reconsidered at an oral hearing CPR 52.4
        
        if permission refused again at oral hearing, no appeal against that decision is possible
    - - HC and CoA have power to order a stay pending the outcome of any appeal process CPR 52.16. this will generally not be ordered but in certain circumstances it is justified
    - - Court has power to: CPR 52.20(2): affirm, set aside, vary any order or judgment given by the lower court, refer any claim for issue for determination by the lower court, order a new trial/hearing, make orders for payment of interest, make a costs order, dismiss the appeal
- - - - important that assets are not held jointly, do not belong to anyone else eg. leased
      - a judgment creditor may apply for an order requiring: a judgment debtor or if a company an officer of that body attends court to provide info about their means or any other matter about which info is needed to enforce a judgment or order CPR 71.2(1)- known as 'oral examination of a debtor'
        
        procedure: Individual: N316, company: N316A application made through this form and can be made without notice to the judgment debtor CPR 71.2(2). This must contain a penal notice stating 'if you within-named do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets seized CPR 71.2(7). unless court orders otherwise, this must be personally served on person ordered to attend court not less than 14 days before hearing CPR 71.3(1)
        
        Judgment debtor must then attend court can produce any docs referred to in the order and answer any qs asked of them on oath CPR 71.2(6)
        
        questioning will be carried out by a court officer or a judge if deemed necessary. these are standard procedures and questionnaires will be used PD 71
        
        if judgment debtor fails to attend the hearing or attends but refuses to comply, matter will be referred to a judge who may make an order for their committal as set out in penal notice
- - - - county court judgments since 1990 and HC judgments since 2006- see if the debtor already has unsatisfied judgments against them
        
        judgments entered against them remain on reg for 6 years, if judgment satisfied within one month, can have their name taken off. if satisfied after one month, can get a cert to show paid off, but name remains on reg
        
        HC entried exclude family matters and technology and construction court
  - - - take steps to enforce a judgment of the English Court (obtained against debtor in English Proceedings) in a foreign jurisdiction
    - - It will be necessary to use the English Courts to facilitate this
    - - some cease to exist after brexit but hague convention still exists
    - - enforcing English judgment abroad under common law, will be governed by the common law of the country you are seeking to enforce the judgment . you would seek advice from a lawyer in that foreign country
        
        judgment creditor must apply for certified copy of judgment CPR 74.12. application may be made without notice. application must be supported by written evidence CPR 74.13
      - enforcing a foreign judgment in England and Wales under common law, you will need to obtain judgment from an English or Welsh court. Done by treating foreign judgment as a debt, issuing proceedings for non-payment of that debt and then applying for summary judgment CPR 24. can only be done if no appeal in foreign court
- - - - important that good are owned by judgment debtor and no third parties have interest
      - application will be made in accordance with standard interim application procedure
      - exempt goods: tools of their trade up to aggregate value £1,350, basic domestic items (clothing, furniture, essential household items under Regulation 4(1)(b)
      - £600 must use CC, between £600 and £5000 can use either court, more than £5000 must use HC
      - process: judgment creditor requests issue of the relevant court document (HC: writ of control, CC: warrant of control) and pays the applicable fee
        
        writ/warrant contains necessary details and amount of os debt, fixed amount for costs of TCG will be added which includes court fee, EO allowed to take their own charges out of proceeds of goods sols
        
        after writ/warrant delivered to EO there is a 3 stage process: 1 giving notice to judgment debtor 2 entering premises and securing goods 3 sale of goods
        
        EO writes to judgment debtor at least 7 clear days before taking control of any goods. do not have to specify when they will be taken, but EO has 12 months from serving notice to take control of goods
        
        EO may use reasonable force to enter premises if necessary (does not include force against the person). EO generally must not take control of goods before 6am or after 9pm or at any premises when a child or vulnerable person is the only person present. can secure goods on premises or remove them. after entry, EO must provide a note giving details of what is happening
        
        alternative is the debtor and EO to enter into a controlled goods agreement. judgment debtor is permitted to retain custody despite EO controlling them, pending payment of debt, this is a last chance for the debtor to pay up
        
        EO must sell goods for the best price that can be reasonably obtained, sale will usually be by public auction. sum specified in writ will go to creditor. any surplus is paid back to debtor
  - - - upon application of creditor, court can make an order requiring the third party to pay the judgment creditor instead in satisfaction of the debt and creditor's cost of the application CPR 72.2(1)
      - procedure: first an interim order must be made without notice to the judgment debtor CPR 72.4, served on third party first and prevents third party from making any payment to the judgment debtor until further order. interim order then served on judgment debtor and will be followed by an on notice hearing where judgment debtor (and third party if they wish) will be heard, court decides whether final order will be made or ti discharge the interim order. application started by judgment creditor making application form N349