Judgments, Orders and Enforcements (Syllabus 22)

Question 1

When will a judgment or order not be drawn up by the court?

Answer 1

(1) the curt orders a party to draw it up
(2) a party, with the permission the court, agrees to draw it up
(3) the court dispenses with the need to draw it up; or
(4) it is a consent order.

Question 2

What can the court direct in relation to the drawing up and filing of judgments and orders?

Answer 2

(1) a judgment or an order drawn up by a party must be checked by the court before it sealed; or
(2) before a judgment or an order is drawn up by the court, the parties must file an agreed statement of its terms.

Question 3

When must a party file a drawn up judgment or order?

Answer 3

no later than 7 days after the date on which the court ordered/permitted him to draw it up

Question 4

Where a judgment or order has been drawn up by a party and is to be served by the court what must the party do?

Answer 4

the party who drew it up must file a copy to be retained at court and sufficient copies for service on him and on the other parties and once it has been sealed the court must serve a copy of it on each party to the proceedings.

Question 5

Who must an order made at trial be served on?

Answer 5

the applicant and the respondent and any other person on whom the court orders it to be served.

Question 6

When does a judgment or order take effect?

Answer 6

from the day when it is given or made, or such later date as the court may specify.

Question 7

When does interest begin to run from?

Answer 7

from the date that judgment is given unless-

(a) a rule or PD provides otherwise; or
(b) the court orders otherwise.

Question 8

What can a party against whom a judgment has been given apply for?

Answer 8

a stay of execution of the judgment or order or other relief, on the ground of matters that have occurred since the date of the judgment or order, and the court may by order grant such relief, and on such terms as it thinks just.

Question 9

Who can apply to set aside or vary a judgment or order?

Answer 9

a person who is not a party but who is directly affected by a judgment or order may apply to have that judgment set aside or varied.

Question 10

What is the time limit for complying with a judgment or order?

Answer 10

a party must comply with a judgment/order for the payment of an amount of money within 14 days of the judgment or order.

Question 11

How can errors in judgments and orders be corrected?

Answer 11

the court may at any time correct an accidental slip or omission in a judgment or order.

Question 12

Can a party apply for a correction of a judgment or order?

Answer 12

a party may apply for a correction without notice.

Question 13

What happens where the court gives judgment on both the claim and counterclaim?

Answer 13

if there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount pay the balance.

Question 14

Can an application for a correction of errors in judgment be dealt with without a hearing?

Answer 14

(1) where the applicant so requests
(2) with the consent of the parties, or
(3) where the court does not consider that a hearing would be appropriate.

Question 15

What is a Tomlin Order?

Answer 15

a form of consent order- where the court orders that further proceedings in the claim be stayed, except for the purpose of carrying out the terms of the compromise, those terms being set out in a schedule tot he order, or in a separate confidential schedule or agreement.

Question 16

What are the three things dealt with on the face of the Tomlin order?

Answer 16

(1) a stay of the proceedings, except for the porpoise of carrying out the terms of the compromise
(2) each party to have permission to apply to the court if necessary to compel compliance with the terms; and
(3) the payment and assessment of costs

Question 17

What are the two parts of a Tomlin order?

Answer 17

the order and the schedule

Question 18

What the schedule of a Tomlin order include?

Answer 18

it usually sets out the detailed terms of the compromise agreement

Question 19

What are the advantages of a Tomlin order?

Answer 19

(1) the schedule does not have to be made public; so allows the parties to keep terms confidential
(2) the schedule is not limited to those orders that a judge has jurisdiction to make in the case
(3) the schedule is better suited to record long or complex terms, as it can be worded in a more flexible way than an order.

Question 20

What are the disadvantages of Tomlin orders?

Answer 20

the enforcement powers for the terms in the schedule are more limited than for the court order itself.

Question 21

What are the restrictions on consent orders?

Answer 21

(1) the court can only make an order that is within its jurisdiction
(2) he court can only make an order based on the issues, causes of action and claims for relief pleaded in the statements of case.

Question 22

What are the different ways of recording a settlement where there are existing court proceedings?

Answer 22

(1) settlement agreement
(2) judgement for immediate payment of an agreed sum
(3) judgment for an agreed sum
(4) informing the court that the case has been settled upon terms endorsed in counsel’s briefs
(5) informing the court that the case has been settled upon terms recorded in a contract
(6) entry of a consent order setting out the agreement
(7) consent order staying all further proceedings
(8) recording in a Tomlin order.

Question 23

What is the final part of the ADR process?

Answer 23

recording the settlement

Question 24

What must a lawyer ensure when recording a settlement?

Answer 24

(1) the terms are comprehensive
(2) each term is clear and sufficiently detailed
(3) the client understands the agreement
(4) the client accepts the agreement
(5) the terms are appropriately recorded
(6) the terms are appropriately enforceable.

Question 25

What form should be used to record the outcome of an ADR process?

Answer 25

this is often governed by the initial agreement to enter ADR, and depends on the form of ADR used.

Question 26

How will a successful negotiation usually be recorded?

Answer 26

in a written contract.

Question 27

How will successful mediations usually be recorded?

Answer 27

usually in an oral agreement unless it has been agreed that a written agreement is essential.

Question 28

How can a party try to enforce an agreement?

Answer 28

(1) in adjudicative procedures enforcement will often be through registering the award and enforcing the award as a civil judgment.
(2) in most non-adjudicative procedures, parties usually have entered into a contract so this can be enforced through breach of contract.

Question 29

What is a judgment creditor?

Answer 29

a person who has obtained or is entitled to enforce a judgment or an order

Question 30

What is a judgment debtor?

Answer 30

a person against whom a judgment is given or made.

Question 31

If a fine is not paid what should a court officer do?

Answer 31

report that matter to a judge.

Question 32

What happens where a fine is paid in instalments, and there is default in a payment of one of those instalments?

Answer 32

this will be taken to be default in the whole of the fine.

Question 33

What happens if a party pays a fine and later satisfies the court that if the evidence has been given earlier, no fine would have been imposed?

Answer 33

the court may order for the whole or part of the fine to be repaid.

Question 34

What PD sets out the methods for enforcing orders or judgments for the payment of money?

Answer 34

PD70

Question 35

Can a judgment creditor use more than one method of enforcement at the same time?

Answer 35

Yes

Question 36

What is a disobedient party?

Answer 36

a party who has not complied with a mandatory order, an inunction or a judge,mt or order for specific performance of a contract.

Question 37

What might the court do is a mandator order, an injunction, judgment or order for specific performances not complied with?

Answer 37

the act be done, so far as practicable by another party and the disobedient party pay the costs of the other party completing the act.

Question 38

If a judgment creditor wishes to enforce a High Court judgment or order in the County Court, what must they do?

Answer 38

apply to the High Court for an order transferring the proceedings.

Question 39

What is a common reason why a party might transfer to the County Court from the High Court for enforcement?

Answer 39

because, the County Court has exclusive jurisdiction to make an order under the Attachment of Earnings Act 1971.

Question 40

What is the most common reason for transferring from the County Court to the High Court for enforcement?

Answer 40

to use a High Court Enforcement Officer to levy execution.

Question 41

When must the order be enforced in the County Court?

Answer 41

where the judgment is for less than £600 or arises out of an agreement regulated by the Consumer Credit Act

Question 42

How can a judgment or order be enforced against a person who is not a party to the proceedings?

Answer 42

by the same methods as if that person were a party.

Question 43

If a judgment or order is set aside what effect will this have on enforcement?

Answer 43

any enforcement of the judgment or order will cease to have effect unless the court orders otherwise.

Question 44

What is a writ of control to be construed in accordance with?

Answer 44

s.62(4) Tribunals Courts and Enforcement Act 2007.

Question 45

What does a writ of execution include?

Answer 45

(1) a writ of possession
(2) a writ of delivery
(3) a writ of sequestration
(4) a writ of fire facias de bones Ecclesiasticus;

it does not include a writ of control.

Question 46

What methods can be used to enforce a judgment or order for the payment of money by a judgment creditor?

Answer 46

(1) a writ of control or warrant of control
(2) a third party debt order
(3) a charging order, stop order or stop notice
(4) in the County Court, an attachment of earnings order
(5) the appointment of a receiver.

Question 47

What orders can the court make against a judgment debtor?

Answer 47

(1) an order in contempt proceedings

(2) in the High Court, a writ of sequestration.

Question 48

What is the scope of CPR Part 71?

Answer 48

it contains rules which provide for a judgment debtor to be required to attend court to provide information, for the purpose of enabling a judgment creditor to enforce a judgment order against him.

Question 49

What can a judgment creditor apply for a judgment debtor to attend court about?

Answer 49

the judgment debtor’s means or any there matter about which information is needed to enforce a judgment or order.

Question 50

How will the person ordered to attend court be questioned?

Answer 50

on oath.

Question 51

What may the judgment creditor or his representative do when the judgment debtor attends court for the hearing?

Answer 51

(1) may attend and ask questions where the questioning takes place before a court officer and
(2) must attend and conduct the questioning if the hearing is before a judge.

Question 52

If a judgment debtor has had an order made for them to attend court and they fail to attend court, to take oath or comply with the order what can the court do?

Answer 52

refer the matter to a High Court judge or Circuit judge.

Question 53

What might a High Court or Circuit Judge do if a Judgment debtor has filed to comply with an order?

Answer 53

hold that person in contempt of court and make an order punishing them by a fine, imprisonment, confiscation f assets or other punishment under the law.

Question 54

What must there application notice filed by a judgment creditor contain?

Answer 54

(1) state the name and address of the judgment debtor
(2) identify the judgment or order which the judgment creditor is seeking to enforce
(3) if the application is to enforce a judgment or order for the payment of money, state the amount presently owed
(4) if the judgment creditor wishes the questioning to be conducted before a judge, state this and the reasons for it.
(5) if the judgment creditor wishes the questioning to be conducted before a judge, state this and give his reasons
(6) if the judgment creditor wishes the judgment debtor to be ordered to produce specific documents at court, identify those documents.

Question 55

Will the order for the judgment debtor to appear at court be before a judge?

Answer 55

only if the judge considering the request decides that there are compelling reasons to make such an order.

Question 56

Does the judgment creditor have to attend the court?

Answer 56

the judgment creditor may attend the court if the hearing is in front of a court officer. The judgment creditor MUST attend the court if the hearing is before a judge.

Question 57

What is the scope of CPR Part 72?

Answer 57

allows for a judgment creditor to obtain an order for the payment to him of money which a third party who is within the jurisdiction owes to the judgment debtor.

Question 58

How is an order for a third party, who owes money to the judgment debtor, to pay the judgment creditor obtained?

Answer 58

without notice on an interim basis.

Question 59

What amount can the court order the third party to pay the judgment creditor?

Answer 59

(1) the amount of debt due or accruing due tot he judgment debtor from the third party; or
(2) so much of that debt as is sufficient to satisfy the judgment debtor and the judgment creditor’s cost of the application.

Question 60

Can money be obtained from a third party, where the bank account is joined?

Answer 60

No

Question 61

How can an application or a third party debt order be made?

Answer 61

(1) without notice and it must be issued in the court which made the judgement or order which it is sought to enforce.

Question 62

What information must an application notice for a third party debt order contain?

Answer 62

(1) the name and address of the judgment debtor
(2) details of the judgment or order sought to be enforced
(3) the amount of money remaining due under the judgment or order
(4) if the judgment debt is payable by instalments the amount of any instalments which have fallen due and are unpaid
(5) the nam and address of the third party
(6) if the third party is a bank/building society- its name and address and the account number or, the fact that the judgment creditor does not know this information
(7) confirmation that to the best of the judgment creditor’s knowledge or belief the their party is within the jurisdiction and owes money to the judgment debtor.

Question 63

What does Part 73 allow the court to do?

Answer 63

where a judgment debtor owes a judgment creditor money, the court may make an order imposing on such property of the judgment debtor as may be specified, a charge for securing the payment of any money due under the judgment or order.

Question 64

How can an application for a charging order be made?

Answer 64

without notice, and the application notice must be in the form required by PD 73 and verified with a statement of truth.

Question 65

How do charging orders apply on a matrimonial home?

Answer 65

(1) if the property is in the sole name of the judgment debtor - or owned jointly by spouses who are both judgment debtors- the charge will be against the land itself.
(2) a charging order can be made in respect of land which the debtor owns jointly with another. However, the order ranks as a charge on the debtor’s beneficial interest.

Question 66

What information must an application notice for a charging order contain?

Answer 66

(1) the name and address of the judgment debtor
(2) details of the judgment or order sought to be enforced
(3) the amount o money remaining due under the judgment or order.
(4) if the judgment debt is payable by instalments the amount go any instalments which have fallen due and remain unpaid.
(5) if the judgment creditor knows of the existence of any other creditors of the judgment credit, their names and their addresses.
(6) identification of the set or assets which it is intended to charge.
(7) details of the judgment debtors interest in the asset.

Question 67

Are judgment’s enforced automatically by the court?

Answer 67

No it is up to the judgment creditor to decide when and how to enforce the judgment.

Question 68

What do writs and warrants of control allow for?

Answer 68

they enable the taking control and sale of goods using ht procedure in Schedule 12. They are the mode for the enforcement of a money judgment by the seizure and sale of the debtor’s goods and chattels sufficient to satisfy the judgment debt and costs of execution.

Question 69

What is the priority of a writ of control compared to a warrant of control?

Answer 69

the priority of a writ of control is determined by when it is delivered to the relevant enforcement officer, whereas the priority of a warrant of control is determined by reference to the date upon which it was issued.

Question 70

When must a relevant writ or warrant be issued with the permission of the court?

Answer 70

(1) six years or more have elapsed since the date of the judgment or order
(2) any change has taken place, whether bu death or otherwise
(3) the judgment or order is against the assets of a deceased person coming into the hand of that person’s executors
(4) any goods to be seized are in the hands of a received appointed by a court
(5) under the judgment or order, any person is entitled. to a remedy subject to the fulfilment of any condition.

Question 71

What must an application for permission for a write or warrant do?

Answer 71

(1) identify the judgment or order to which the application relates
(2) if the judgement or order is for the payment of money state the amount originally due
(3) state the reasons for the delay in enforcing the judgment or order
(4) state the change which has taken place the parties entitled or liable to execution.

Question 72

Does an application for permission for a writ or warrant need to be made with notice?

Answer 72

No, unless the court orders otherwise.

Question 73

What is the process for taking control of goods?

Answer 73

(1) the enforcement agent gives notice of enforcement to the debtor
(2) the debtor either makes contact with the enforcement agent and pays the debt or enters into an arrangement for payment which is maintained
(3) goods may be taken control of by the enforcement agent in four ways (securing goods on the premises, securing goods on a highway, removing goods and storing them elsewhere or by entry into a controlled goods agreement)
(4) the goods are sold at public auction
(5) the proceeds if the sale are used to pay the amount outstanding which induce the debt and costs.

Question 74

What applications can the enforcement agent make to the court?

Answer 74

(1) to shorten the period for notice to the debtor of enforcement
(2) to extend the prescribed period within which the enforcement agent may take control of goods
(3) to take control of goods during prohibited periods
(4) to re-enter premises giving less than a minimum period of notice
(5) to issue a warrant in respect of specified premises and to use reasonable force to enter premises
(6) to sell other than by public auction
(7) to deal with abandoned goods
(8) to obtain exceptional disbursements.

Question 75

What is a controlled goods agreement?

Answer 75

an agreement under which the enforcement agent and the debtor agree terms for the repayment bu the debtor of the sum outstanding under the judgment or order.

Question 76

What are the requirements for a controlled goods agreement?

Answer 76

it must be in writing and signed by the enforcement agent and the debtor, a person authorised by him, or a person in apparent authority on premises used to carry on a trade or business.

Question 77

Where and how can an application for the taking of goods be made?

Answer 77

(1) made in accordance with the Part 23 procedure
(2) where there are no pre-existing proceedings, an application referred to must be made to the County Court
(3) where there are pre-existing proceedings, an application must be made to the High Court

Question 78

What can an attachment of earnings be used for?

Answer 78

to secure payments under a High Court or County Court judgment where the judgment debt, or the amount remaining payable under the judgment is not less than £50.

Question 79

Where should an application for an attachment of earnings be made?

Answer 79

An application to the County Court for an attachment of earnings order set be made to the County Court Money Claims Centre.

Question 80

How can a judgment creditor apply for an attachment of earnings order?

Answer 80

the application must include a certificate of the amount of money remaining due under the judgment or order.
Where the application is sought to enforce an order of a magistrates’ court, the applicant must also file-
(1) a certified copy of the order; and
(2) a witness statement verifying the amount due under the order.