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POST-TRIAL STAGE, POST-TRIAL STAGE - Coggle Diagram
ENFORCEMENT
Enforcement proceedings = steps taken post judgment by successful party (judgment creditor) to obtain payment from unsuccessful party (judgment debtor)
- Court does not automatically take enforcement action against judgment debtors + creditor cannot recover any more than is due under judgment
Investigating the opponent’s means
- IF defendant is able / will pay any judgment given must be considered before action is commenced AND as it progresses
- Post judgment searches + investigations already taken can be repeated and updated
Order to obtain information from the judgment debtor
- Requiring judgment debtor to attend court to provide information about their means / any matter needed to enforce judgment or order
- May be made without notice to the judgment debtor
- Order must contain a penal notice
- Must be served personally on person ordered to attend court not less than 14 days before the hearing
- Judgment debtor attends court + produces documents referred in the order + answer any questions asked of them on oath > IF THEY DO NOT = matter referred to judge who may make an order for the judgment debtor’s committal
Investigating the opponent’s means
Types of searches
- Company searches = access info at Companies House, including a company’s annual accounts / insolvency / assets
- Land Charges Registry = restrictions / prohibitions on use of property and any charges against it
- Individual Insolvency Register = lists people who have been made bankrupt / who have Debt Relief Orders or Individual Voluntary Arrangements (IVAs) in place
- Attachment of Earnings Order Index = debtors against whom there are attachment of earnings orders in force
- Register of Judgments, Orders and Fines = County Court judgments from April 1990 + High Court judgments from April 2006
Feautures of opponent
- Legally aided opponent = win or lose, client will not recover its costs / damages
- Dissipation of assets = assets have been dissipated in anticipation of judgment
- Insured opponent = if defendant has insurance for the risk involved > entitled to be indemnified by insurance company for some / all of damages and/or costs so payment is faster
Other jurisdictionsIf the judgment debtor has assets abroad = necessary to enforce a judgment of the English court in foreign jurisdiction and vice versaRegimes
Judgment from UK can be enforced in foreign jurisdiction which is a party to a reciprocal arrangement and vice versa BUT if not reciprocal common law appliesCommon law
- If enforcing English judgment abroad = governed by the common law of the country in which enforcement is seeked
- If enforcing foreign judgment in England & Wales = necessary to obtain a judgment from English / Welsh court > done by treating foreign judgment as debt + issuing proceedings for non-payment of that debt + applying for summary judgment
Procedural steps
- Identify which foreign jurisdiction dealing with
- Follow the relevant procedure
- Enforcement in foreign countries High Court / County Court judgment = judgment creditor must apply for a certified copy of the judgment + support by written evidence exhibiting claim form = once a certificate of judgment has been obtained > judgment creditor follows procedure
METHODS OF ENFORCEMENT
Some methods of enforcement are only available in one particular court (ie the County Court or the High Court) so you may need to have the proceedings transferred to a different court for the purposes of enforcement.
Moveable assets = TCG > Transfer High Court if necessary
Debts owed by others = Third party debt order
Real property = Charge > creditor understands that payment of judgment debt ONLY obtained if order for sale is subsequently sought and obtained.
Earnings = Transfer the judgment to County Court if necessary + attachment of earnings order.
The nature of the debtor’s assets is unclear = order to obtain information from judgment debtor of its assets
1. Taking Control of Goods (‘TCG’)Enforcement officer (‘EO’) seizes judgment debtor’s goods (must be owed by them > company cars do no count) + sell them to satisfy the judgment debt
- Quick and simple as long as judgment debtor has goods which can be taken and sold off + w no 3P caims
Exempt goods
- tools of judgment debtor’s trade to aggregate value of £1,350 AND
- basic domestic items, such as clothing, bedding, furniture and essential household items
Procedure
1. Judgment creditor can apply for TCG as soon as judgment has been obtained + debtor has failed to pay by the time payment is dueCourt > either court
- Debt sum up to £600 = County Court
- Debt sum between £600 and £5000 = either High Court or County Court
- Debt sum more than £5000 = High Court2. Judgment creditor commences process by requesting issue of relevant court document: High Court > Writ of control / Country Court > Warrant of control + addressed to EO entitling them to seize + sell goods
- The writ or warrant will contain: necessary details + amount of outstanding debt + fixed amount for costs of TCG will be added (includes court fee)
3. After the writ or warrant of control has been delivered to EO > 3 stages (4-6)4. Giving notice to judgment debtor of enforcement = EO will write to judgment debtor at least 7 clear days before taking control of any goods BUT not required to specify exactly when5. Entering premises and securing the goods = may use reasonable force to enter premises if necessary but:
- NO control of goods before 6am or after 9pm on any day / at any premises when a child or vulnerable person is only person present
a. EO may secure goods + provide a notice for judgment debtor after entrygiving details of what is happening
OR
b. EO enters into a controlled goods agreement with judgment debtor = judgment debtor permitted to retain custody of goods, despite EO taking control of them, pending payment of the debt6. Sale of the goods = Unless judgment debtor makes payment > EO sells goods for best price obtained by way of public auction7. Sum specified in the writ or warrant of control will be paid to the judgment creditor and recovery will be complete
2. Third Party Debt Orders
Used if there is ‘debt due or accruing due’ to judgment debtor by 3P within the jurisdiction
Procedure
1. Application of a judgment creditor
2. 3P must disclose information to court + judgment creditor > IF objects to making of order = file + serve written evidence stating grounds for objection
3. Interim order made without notice to judgment debtor + served on 3P preventing them from making any payment to judgment debtor until further order
4. Interim order served on judgment debtor + followed by notice hearing where judgment debtor (and third party if they wish) will be heard
5. Court may make an order requiring 3P to pay to the judgment creditor some / all of a debt owing to judgment debtor, in satisfaction of the judgment debt + judgment creditor’s costs of the application OR discharge interim order
3. Charging Orders on land or certain securitiesForm of charge taken over land (or other specified assets) which secures a judgment debt
- Once made = final + remain in place until property is sold by debtor > debt paid using sale proceeds + charge removed
Procedure1. Application of a judgment creditor2. Interim charging order3. Final charging order > creditor can force sale process by subsequent application for order for sale before funds can be realised
4. Attachment of earnings ordersUsed if judgment debt / amount outstanding is not less than £50 + debtor does not have substantial assets. If the order is obtained:
- Judgment debtor’s salary will have deductions made from it by their employer
- Deductions will be paid into court for transmission directly to judgment creditorONLY in County CourtProcedure1. Judgment creditor applies by filing an application in a standard form, certifying amount of judgment outstanding + paying a fee2. Application + reply form served on debtor who should complete + return reply form to the court3. Court may then make an order (without the attendance of either party) attaching proportion of judgment debtor’s earnings + served on debtor + debtor’s employer required to make appropriate deduction from debtor’s earnings and pay it to court for onward transmission to the judgment creditorIssues
- Debtor may change jobs > creditor will need to start again for any outstanding balance
- Delay if the judgment debtor chooses not to return the reply form
5. Insolvency proceedingsPetition for bankruptcy against an individual can be issued when the judgement debt against them is < £5,000 OR wind up a company if < £750
- Extremely effective method of getting payment if there is money available
Procedure1. Petition is issued + presented to judgment debtor’s local court2. Petition is served on judgment debtor3. Court fixes time for hearing of petition + notifies debtor of date to decide whether a bankruptcy / winding-up order should be made against them
- If they do not attend to oppose petition at hearing = bankruptcy / winding up order very likely made + debtor’s assets will be distributed to creditors following preference rules
Statutory demands
- Served on debtor prior to petition being issued
- IF debt remains unpaid for 21 days after service > debtor is at risk of court presuming that he/it is unable to pay its debts > insolvent making bankruptcy or winding-up petition difficult to resist
APPEALS
1. Grounds of appeal
Appeal court will allow appeal where decision of lower court was either: Wrong OR Unjust because of serious procedural / other irregularity in the proceedings in the lower court (only 1 needs to be met)
Procedure
Review of lower court’s decision based evidence + representations lower court heard NOT re-hearing matter in question = no new evidence + not possible to examine evidence
Test
- Wrong decisions in the lower court - due to:
a. error of law OR
b. error of fact OR
c. error in exercise of court's discretion
UNLIKELY to apply if decision was primarily based on assessment of evidence which appeal court cannot conduct.
- Unjust decisions in the lower court - due to serious irregularity: no chance to make submissions / lower court judge involved in previous proceedings / manner judge handled evidence / too much reliance on skeleton argument in judgement
2. PermissionMust be established before appeal court considers groundsAppellant can apply for permission in 2 ways:1. Apply for permission from lower court when decision to be appealed is made + do so orally + saves time / costs does NOT prevent later application to appeal courtAND / OR2. Make application to appeal court later + in writing, Form N161, + usually no hearing + more time to prepare application + can pursue even if unsuccessful in application to lower court.Procedure
IF appeal court = Court of Appeal
- Applications for permission determined on papers alone, unless judge requires matter to be dealt with orally + exercises discretion to summon parties for oral hearing
IF appeal court = County Court / High Court
- If it refuses paper application > appellant may request oral hearing (within 7 days after service of notice refusing permission)
Test for granting permission1st appeals - ONLY be granted if:
- appeal would have a **real prospect of success OR
- other compelling reason why appeal should be heard**
2nd appeals = Appeals of decision made on first appeal of a lower court’s decision + ONLY be granted if:
- appeal would have real prospect of success AND raise important point of practice OR
- other compelling reason for Court of Appeal to hear it
IF permission granted
- Form N161 details grounds of appeal + other information, evidence + supporting docs
- BUT appeal does not stay of execution of lower court's order > may still be enforced pending appeal but High Court / Court of Appeal have power to stay pending appeal process
Time limitsAppeal (including application for permission) must be made within 21 days of date of lower court’s decision on Form N161
- Can be longer in court allows
- Judgments / orders take effect from date they are given / made OR later date as court may specify
- Delay in judgment / order WILL NOT delay time for appeal
IF appeal court = Supreme Court = 28-day deadline (from the date of the decision) to seek permission from the Court of Appeal to appeal to the Supreme Court, with the possibility of extension by the Court of Appeal.
3. Routes of appeals
Which court / judge will be appeal court for lower court’s decision > appeal lies to next level of judge in hierarchy
Appeal from County Court District Judge > County Court Circuit Judge
** Appeal from County Court District Judge for non-insolvency proceedings pursuant to Companies Acts > High Court
Appeal from County Court Circuit Judge > High Court Judge
Appeal from High Court Master > High Court Judge
Appeal from High Court Judge > Court of Appeal**
For 2nd appeals:
- Appeal from County Court Circuit Judge > Court of Appeal
- Appeal from High Court Judge > Court of Appeal
- Appeal from Court of Appeal > Supreme Court
IN exceptional circumstances:
- County Court District Judge / County Court Circuit Judge / High Court Master > Court of Appeal
- High Court Judge > Supreme Court
Orders from appeal court make
Can replace the lower court’s judgment
- Affirm / set aside / vary judgment by lower court
- Refer claim / issue for determination by lower court
- Order new trial / hearing
- Make orders for payment of interest
- Make costs order
- Dismiss the appeal
JURISDICTION
IF courts of England and Wales have jurisdiction to determine a claim
- Courts of England and Wales determine disputes in England and Wales + CPR always apples
IF they have jurisdiction 2 approaches are possible:
1. THE HAGUE CONVENTION
IF commenced on / after 1 January 2021 > Hague Convention on Choice of Court Agreements, Must be used if it applies BUT IF NOT = common law rules
Allows commercial parties to particular country's courts to determine disputes regardless of where dispute takes place / where they are based
ONLY applies to choice of court agreements concluded on or after 1 October 2015
Hague Convention Approach
1. Civil and commercial matters = only applies to them NOT public / criminal law
2. Exclusions = disputes with consumers and employment matters are EXCLUDED
3. Jurisdiction to a contracting state = only applies if parties have chosen Contracting State as court to have jurisdiction (UK, all EU members states, Mexico, Singapore and Montenegro)
4. Exclusive jurisdiction = only applies to clauses giving 'exclusive' jurisdiction to particular country
5. Concluded / evidenced in writing = only applies if jurisdiction agreement is in writing / evidenced / documented in writing
6. Asymmetric agreements = where one party can commence proceedings only in specific country, BUT other party can do so in that country or any other that has jurisdiction under other relevant rules > unclear if HC applies
Consequences
IF clause falls within provisions of the Hague Convention, 2 main consequences:
1. Court indicated as having jurisdiction has jurisdiction + cannot decline it on basis that dispute should be decided in another country
2. Any other court must refuse to hear the proceedings
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SERVING A CLAIM FORM OUTSIDE THE JURISDICTION
Permission rules
- IF present in jurisdiction = NO permission needed
- IF Hague Convention applies = NO permission needed but comply with the rules for service out of the jurisdiction
- IF there is a clause giving jurisdiction = = NO permission needed but comply with the rules for service out of the jurisdiction
IF Common Law applies = permission NEEDED AND comply with the rules for service out of the jurisdiction
1. Validity of process
- Claim form validly issued > claimant has 6 months for service outside jurisdiction (more than usual 4)
2. Service out = permission needed
- NO permission if Hague Convention / clause gives the court jurisdictionProcedure to service out
- If claimant is seeking to serve English claim form abroad w/out permission = file N510 when issues + files claim form
- If claimant is seeking to serve English claim form abroad with permission = claimant makes interim application N244 to court for permission to serve claim form on defendant
Methods to service out
1.Service in accordance with agreed regulation, convention or treaty
- Service through government of destination country
- Service by any method permitted by law of destination country
Extended periods for filing acknowledgment of service/defence apply if claim form/ particulars is served out of jurisdiction
Difficulties with serviceIF not possible to serve through usual methods w/in jurisdiction > following orders may apply:Alternative service
- Court may permit service by alternative method if there is good reason to do so + after claimant outlines why other methods are not suitable
- Court may order that steps taken to bring claim form to attention of defendant = good service.
- Cannot be used retrospectively OR to remedy irregular service
Dispensing with service
- Court may dispense with service of a document ONLY if other side is already aware of document so that there is no need to serve
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CONFLICT OF LAWS
CONTRACT- Rome I Regulation have been adopted into English law with minor amendments and apply to resolve disputes if there is no jurisdiction clause
- DO NOT to contracts entered into before 17 December 2009
- Special provisions for contracts of carriage, consumer contracts, employment contracts and insurance contracts.
Test1. The parties' choice = Parties can choose which country's law will apply
- IF DO = it will apply
- IF NOT = step 2
2. Types of contract
Is contract one of the following?
- Sale of goods contract = law is seller's habitual residence*
- Provisions of services contract = law is service provider's habitual residence
- Contract relating to land = law is where land is situated
- Distribution contract = law is distributor's habitual residence3. Characteristic performance
If not contract above > applicable law is:
- Law of the country where party required to effect characteristic performance (does something) of contract has its habitual residence4. Manifestly more closely connected
- If applicable law has been determined under step 2/3 > court will apply a different country's law if contract is manifestly more closely connected with that other country
TORT- Rome II Regulation have been adopted into English law with minor amendments and apply to resolve disputes if there is no jurisdiction clause
- ONLY applies to events giving rise to damage which occurred on or after 10 January 2009
- Special provisions for product liability, unfair competition, environmental damage, infringement of intellectual property and industrial action
Test1. The parties' choice = Parties can choose which country's law will apply
- If agreement entered into after event giving rise to tortious damage = choice will be effective
- If agreement entered into before event giving rise to tortious damage = choice only effective if both parties are pursuing a commercial activity + freely negotiated the choice of law
2. Parties resident in the same country
Do parties reside in same country?
- YES = country's laws will apply
3. Law of the country where the damage occursIf
- Law of the country in which the damage occurs
4. Manifestly more closely connected
- If applicable law has been determined under step 2/3 > court will apply a different country's law if tort is manifestly more closely connected with that other country
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