Appeal MCQs Flashcards
The High Court allows a claim for breach of statutory duty in reliance on an interpretation of legislative provision which is irreconcilable with an earlier, binding Supreme Court decision.
Does the Defendant have good grounds for an appeal in relation to the finding in favour of the claimant?
Yes, because the decision of the court was wrong.
No, because the grounds for an appeal are not made out.
Yes, because the decision of the court was unjust.
Yes, because the decision was beyond the power of the court.
No, because the decision related to the common law which is decided on a case-by-case basis.
Yes, because the decision of the court was wrong.
Correct. An appeal court will allow an appeal where the decision of the lower court was wrong or unjust (CPR 52.21(3)). The clearest ground here is that the court’s decision was wrong, because it contained an error of law – an unsustainable interpretation of statute. There is nothing on the facts to suggest that the lower court exceeded its powers. The decision did not really relate to the common law, it related to the interpretation of statute, but either way, such decisions can be appealed if the grounds are established.
The claimant is considering enforcement of a judgment of £30,000 against a defendant which is a limited company. The defendant operates its business from rented offices. The defendant has a fleet of vans (not subject to finance) as well as £6,000 in the bank, and approximately 12 employees. The defendant’s customers owe it in excess of £45,000 (made up of around 60 customers that each owe between £500 and £1,000).
Which of the following do you consider to be the most suitable method of enforcement to use first in these circumstances?
Present a bankruptcy petition.
Attachment of Earnings Order
Third Party Debt Order
Charging Order
Taking Control of Goods Order
Taking Control of Goods Order
Correct. This is the best option on the facts and should be effective against the fleet of vans which will have sufficient value to make this worthwhile. In terms of the incorrect answers, a charging order is applied to property, but this is not an option for rented premises. An attachment of earnings order is applied to an individual defendant’s salary – not to a defendant which is a limited company (and which is paying salaries, not receiving a salary). A Third Party Debt Order could be used to ensure the claimant receives the amount owed by the defendant’s customers when paid, but this is not practicable / possible when you are faced with many small debts (not any big ones).
In finding for the defendant in a breach of contract claim the judge says the following in their judgment:
‘The claimant must accept responsibility for the slogan it used when marketing the goods, ‘’Better than anything else you can buy – guaranteed’’. This was not an invitation to treat or a ‘mere puff’ but, in my judgment, became a contractual term.’
What is the most appropriate ground for appeal for the unsuccessful claimant?
The judge’s decision was unjust due to an ‘other’ procedural irregularity.
The judge’s decision was unjust.
The judge’s decision was wrong because they erred in law.
The judge’s decision was wrong because they erred in fact.
The judge’s decision was unjust due to a serious procedural irregularity.
The judge’s decision was wrong because they erred in law.
Correct. See the element ‘Appeals (solicitor)’ and your materials from your study of contract law prior to this module.
A claimant succeeds in a professional negligence claim against a defendant company. Judgment is for £80,000 plus costs of £35,000. The defendant company refuses to pay the judgment, indicating that it has no money to do so. The claimant believes the defendant has substantial cash in the bank. What is the best way for the claimant to receive confirmation as to whether this is the case?
Draw the defendant’s conduct to the court’s attention in relation to costs.
Apply for a witness summons in relation to the defendant.
Apply for an order that a representative from the defendant should attend court to answer questions about the assets.
Apply for specific disclosure of documentation in relation to the assets.
Apply for a High Court Execution Officer to make enquiries as to the defendant’s assets.
Apply for an order that a representative from the defendant should attend court to answer questions about the assets.
Correct. This procedure where the court becomes involved and which is also known as oral examination of a debtor (CPR 71) would be the best way. Neither specific disclosure nor a witness summons is appropriate now that the proceedings have concluded. The court does not have a costs decision to make, and therefore drawing the defendant’s conduct to the court’s attention in relation to costs is not going to help. An execution officer is not used to make enquiries as to the defendant’s assets.
At the conclusion of a fast-track trial on Monday 5 November, the court gives judgment for the claimant in the sum of £18,000. The order is subsequently drawn up by the court on Wednesday 7 November, and received by the defendant (in the post) on Friday 9 November. By when must the defendant pay the judgment sum (unless ordered otherwise)?
Friday 16 November
Wednesday 14 November
Monday 12 November
Wednesday 21 November
Monday 19 November
Monday 19 November
Two weeks from judgement
Correct. (CPR 40.11)
Question 10
A decision is made by the Court of Appeal (Civil Division) in favour of the claimant. The defendant wishes to obtain permission to appeal.
Which of the following courts have the power to grant permission to appeal?
A. The Court of Appeal only.
B. The Supreme Court only.
C. The House of Lords only.
D. The Court of Appeal and the Supreme Court.
E. The Court of Appeal and the House of Lords.
D - The Court of Appeal and the Supreme Court.
Melanie, who is not a lawyer, issues a claim in the County Court against Nick for breach of contract. The trial takes place before a Circuit Judge in June 2021. At the trial Melanie represents herself, whereas Nick is represented by a barrister. At the trial the Judge does not allow Melanie to make a closing speech but does allow Nick’s barrister to make a closing speech. The Judge decides the case in favour of Nick.
Melanie, who did not ask the Circuit Judge for permission to appeal, now seeks your advice about appealing the decision of the Circuit Judge. What advice should you give to Melanie?
Melanie can appeal as of right to a single judge of the High Court. Melanie does not need permission to appeal due to the serious procedural irregularity in the County Court trial.
Melanie has no route of appeal open to her because she did not ask the Circuit Judge for permission to appeal.
Melanie can appeal with permission to the Court of Appeal. Melanie should argue that the decision of the Circuit Judge was unjust because of a serious procedural irregularity.
Melanie can appeal with permission to a single judge of the High Court. Melanie should argue that the decision of the Circuit Judge was unjust because of a serious procedural irregularity.
Melanie can appeal with permission to a single judge of the High Court. Melanie should argue that the decision of the Circuit Judge was unjust because of a serious procedural irregularity.
Correct – As set out in Section III of Practice Direction 52A, an appeal lies, with permission, from the decision of a Circuit Judge in the County Court to a single judge of the High Court(rather than to the Court of Appeal). Pursuant to CPR 52.21(3), one of the grounds for allowing an appeal is that the decision of the lower court was unjust because of a serious procedural irregularity. Not allowing one party to make a closing speech is likely to amount to a serious procedural irregularity.
Where permission to appeal is required, the permission may be obtained either from the lower court or from the appeal court: see CPR 52.3(2). Failing to ask for permission from the lower court does not prevent a party from asking for permission from the appeal court. The requirement to obtain permission to appeal does not depend on the reason why it is contended that the appeal should be allowed.
Betty has obtained a judgment against her builder, Martin, a sole trader, for £60,000. Martin solely owns a house worth £400,000 where he keeps several antiques, last valued at £20,000. There is no mortgage in respect of the house. He has several bank accounts but they are all overdrawn. Martin has no other assets.
Advise Betty on the BEST way to enforce the judgment in her favour from the following options:
Betty would be best advised to apply for a writ of control and a charging order.
Betty can enforce the judgment by a third party debt order.
Betty would be best advised to apply for a warrant of control only.
Betty can enforce the judgment by an attachment of earnings order.
Betty would be best advised to apply for a writ of control and a charging order.
Correct. This is the BEST advice. The writ of control seems likely to realise some money on these facts due to the antique collection. The antique collection is likely to realise approximately £20,000. However, a charging order should be sought as well as it appears on the facts the only remaining option for securing the remaining amount. It is possible to combine different methods of enforcement: see CPR Rule 70.2, PD 70, para 1.1, CPR Rule 73.3 and CPR 83.2 and 84.3 and the commentary at paragraphs 73.0.1, 83.0.4, 84.0.2 of the White Book. The High Court Enforcement Officer would levy execution here because the client is seeking to enforce an outstanding judgment sum which is in excess of £5000 (i.e. on the facts the antique collection is likely to realise approximately £20,000) and therefore it is a “writ of control” as there would be transfer to the High Court. Please see the editorial commentary in the White Book at 70.3.2.
An attachment of earnings order cannot be made in respect of self-employed income. Given we know Martin has no other assets, it is not possible that all of the money owed by Martin will be realised by a warrant of control alone. In addition, enforcement by this method (i.e. taking control of goods) would not be in the County Court on these facts, and therefore the case would need to be transferred from the County Court (where it was issued) to the High Court for the purposes of enforcement by this method. A third party debt order does not seem possible as we are told that whilst Martin has several bank accounts, they are all overdrawn.
Reena brought a breach of contract claim against Phil in relation to a high-end kitchen she had bought from him. She pleaded that the kitchen units and integrated appliances were defective and claimed losses of £64,000. The claim was allocated to the multi-track and heard before Her Honour Judge Davies (QC) in Gladbury County Court. Judgment has just been entered in favour of Reena. Phil wishes to appeal the decision of the Circuit Judge and we are of the opinion that there are grounds for him to do so.
What would be the BEST ADVICE to give Phil in relation to the steps he should take to appeal this decision?
Phil has an automatic right of appeal and does not need the court’s permission to do so.
Phil should apply for permission to appeal in an appeal notice to the Court of Appeal.
Phil should apply for permission to appeal from HHJ Davies orally.
Phil should apply for permission to appeal in an appeal notice to the High Court.
Phil should apply for permission to appeal from HHJ Davies orally.
Correct: this is the best advice. Phil can apply for permission orally from the trial judge at the end of the hearing and if it is refused, he can then apply for permission to the appeal court in an appeal notice. See CPR 52.3(2) and (3).
Although it is possible for Phil to apply for permission to appeal in an appeal notice to the appeal court, (here, the High Court), this is not the best advice. On these facts there is no automatic right of appeal and so Phil will need the court’s permission to do so. Although it is possible for Phil to apply for permission to appeal in an appeal notice to the appeal court, here the appeal court would be the High Court and not the Court of Appeal. In any event this is not the best advice as he should first apply for permission to appeal from HHJ Davies orally as this will save time and costs if granted. See CPR 52.3(2) and (3) and 52APD3.
A sued B in the County Court. Before a District Judge, A lost. A then sought permission to appeal from a Circuit Judge. The Circuit Judge refused A permission without a hearing. A wishes to know what she can do now.
Which ONE of the following is correct?
A has no recourse and so can do nothing more.
A can apply to strike out the order of the Circuit Judge.
A may request the decision of the Circuit Judge to be reconsidered at an oral hearing.
A can seek to obtain default judgment against B.
A may request the decision of the Circuit Judge to be reconsidered at an oral hearing.
Correct. See CPR 52.4(2).
