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SQE 1 > DR 13 - Trial > Flashcards

DR 13 - Trial Flashcards

1
Q

When is a consent order used?

A

On a matter has been settled between the parties.

If the consent order is breached, the wronged party will have to raise a new claim for the breach.

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2
Q

What are the two types of consent order?

A

A consent order based on a contract: only rarely be interfered with by the court.

A consent order NOT based on contract: may be altered or varied by the court.

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3
Q

What is a Tomlin Order?

A

A Tomlin Order is made up of 2 parts;
- the first part is the public part which stays the proceedings
- the second is confidential part and contains the detail of the agreement reached between the parties (normally goes beyond what a court could order).
If the party defaults the stay is lifted.

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4
Q

Where must any direction for payment of money out of court or the payment and/or assessment of costs be included in a Tomlin Order?

A

Part 1

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5
Q

Can consent orders be used for interim applications?

A

Yes

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6
Q

Can consent orders be used for pre-action matters?

A

No - those agreements should be recorded in a settlement agreement.

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7
Q

What is the purpose of a pre-trial check list?

A
  • check that the case management directions previously given have been complied with and that the case is ready for trial;
  • give any further necessary directions; and
  • fix a date for trial (or confirm a date that has already been fixed).
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8
Q

What does the pre trial check list require of the parties?

A
  • To confirm whether they have complied with the directions given (and, if not, which directions are outstanding and by what date they will be complied with).
  • To specify any further directions required to prepare the case for trial and enclose an application form and draft order for those directions.
  • To confirm whether the court has already consented to expert evidence being given at trial (in writing or orally). If it has not, such an order should now be sought by way of application.
  • To give details of experts, whether they have met to discuss their reports, and whether their reports have been agreed.
  • To give details of dates within the trial period when experts will not be available.
  • To give details of witnesses, their availability and any special facilities they require.
  • To give details of who will present the case at trial and their availability within the trial period.
  • To estimate the trial length, including cross-examination and closing arguments, and to attach a proposed timetable for trial (preferably agreed between the parties).
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9
Q

When will the pre-trial check list be sent to the parties?

A

A pre-trial checklist is sent to each party at least 14 days before the due date for filing.

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10
Q

When is the due date for the pre-trial check list?

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

Parties are encouraged to exchange copies of the pre-trial checklists before filing, to avoid the court being given conflicting or incomplete information

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11
Q

When should the trial bundle be provided to the court?

A
  • no more than seven days and no less than three days before the trial begins.
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12
Q

What should be included in a trial bundle?

A
  • claim form and all statements of case;
  • case summary and/or chronology where appropriate;
  • requests for further information and responses to these;
  • witness statements;
  • any hearsay notices;
  • any experts’ reports, with responses to them;
  • direction orders
  • any other relevant docs
  • any order giving directions for the conduct of the trial; and
  • any other necessary documents.
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13
Q

When should a reading list be included?

A

In all High Court cases in the Chancery Division and the King’s Bench Division

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14
Q

What does a reading list set out

A

The estimated time to read the bundle and get to grips with the case.

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15
Q

Which court are Skeleton arguments prepared for

A

High Court trials

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16
Q

When must a list of authorities be provided?

A

High court cases

5pm the day before the trial

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17
Q

What is a notice to admit facts

A

Asking the other side to agree to a fact. If so, the fact need not be proved. A vexatious refusal to admit a fact may be punished.

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18
Q

Are leading questions allowed in cross-examination?

A

Yes

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19
Q

Are leading questions allowed when re-examining a witness?

A

No

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20
Q

What is the order of the court case?

A

Claimant’s opening speech
Claimant’s case
Defendant’s case
Defence closing speech
Claimant’s closing speech

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21
Q

What does ‘Drawing up’ mean?

A

‘Drawing up’ an order means setting the order out in the formal document to be sealed by the court.

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22
Q

Who is normally responsible for ‘Drawing up’?

A

The Court

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23
Q

If the Court makes someone else responsible for drawing up an order, when must they do this by?

A

They are required to file it no later than 7 days after becoming responsible for doing so. If they fail to do so, the other party may draw up the order.

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24
Q

When does a judgement take effect

A

A judgment or order is effective from the date it is given or made, not served.

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25
Q

When does interest run from?

A

the date on which the judgement is given.

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26
Q

When is payment due?

A

14 days from the date of the order

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27
Q

What is the Debt Respite Scheme?

A

The Scheme allows
- an individual debtor (not a company)
- to approach a debt advice provider (which might be a local authority)
- to ask for ‘breathing space’ of 60 days - on the basis that they are unlikely to be able to repay their debts.
- If the debt advice provider considers it appropriate then they can start a breathing space via the insolvency service, which then notifies the debtor’s creditors.

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28
Q

What happens if a Debt Respite Scheme notification is given?

A

During the breathing space period:

  • all collection and contact with the debtor requesting payment must stop (unless the court gives permission).
  • Unless the court gives a creditor permission to continue, the court must also make sure any action to enforce a court order or judgment about a breathing space debt stops during the breathing space.
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29
Q

What sorts of cases can’t be part of the Debt Respite Scheme?

A

Any judgment for damages for death or personal injury caused to someone else is excluded from the scheme.

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30
Q

How does one get information about a judgement debtor?

A

Using an Order to obtain information about a judgement debtor.

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31
Q

Does notice need to be served on the defendant to get a Order to obtain information about a judgement debtor?

A

No

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32
Q

What wording must be contained in a Order to obtain information about a judgement debtor

A

The order must contain a ‘penal notice’, stating:

‘If you the 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 may be seized’

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33
Q

How is a Order to obtain information about a judgement debtor to be served?

A

Unless the court says otherwise, it must be served personally on the person ordered to attend court

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34
Q

When must an Order to obtain information about a judgement debtor be served?

A

Not less than 14 days before the hearing

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35
Q

What is the effect of a Order to obtain information about a judgement debtor?

A

The judgment debtor must then attend court and produce any documents referred to in the order, and answer any questions asked of them on oath

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36
Q

What happens if the judgement debtor fails to attend court or does not comply?

A

The matter will be referred to a judge who may make an order for the judgment debtor’s committal, as set out in the penal notice.

37
Q

What are the main enforcement methods against a judgement debtor?

A

· Writs / warrants of control;

· Third party debt orders;

· Charging orders;

· Attachment of earnings orders;

· Insolvency proceedings

38
Q

Generally, when can enforcement action begin?

A

the time for payment as specified in the judgment itself or in the rules must have elapsed without payment having been made.

39
Q

How does one enforce a judgement abroad?

A
  • The judgment creditor must apply for a certified copy of the judgment.
  • The application must be supported by written evidence exhibiting the claim form, statements of case and the evidence that was served on the defendant.
  • Once a certificate of judgment has been obtained, the judgment creditor should follow the procedure in the applicable regime or common law to enforce the judgment abroad.
40
Q

what does ‘Taking Control of Goods (‘TCG’)’ do?

A

Allows an enforcement officer (‘EO’), which includes those who were formerly known as bailiffs and High Court sheriffs, to seize a judgment debtor’s goods and sell them in order to use the proceeds of sale to satisfy the judgment debt and expenses.

41
Q

What are the exempt goods for ‘Taking Control of Goods (‘TCG’)’?

A
  • tools of the judgment debtor’s trade which are exempt, but only to an aggregate value of £1,350 and
  • basic domestic items, such as clothing, bedding, furniture and essential household items.
42
Q

Which court must be used for a ‘Taking Control of Goods (‘TCG’)’ order of:

Debt sum up to £600

A

Must use County Court

43
Q

Which court must be used for a ‘Taking Control of Goods (‘TCG’)’ order of:

Debt sum between £600 and £5000

A

Can use either High Court or County Court

44
Q

Which court must be used for a ‘Taking Control of Goods (‘TCG’)’ order of:

Debt sum more than £5000

A

Must use High Court

45
Q

What is the order sought for a ‘Taking Control of Goods (‘TCG’)’ order in the County Court and the High Court?

A

High Court – Writ of control

Country Court – Warrant of control

46
Q

Who is the writ or warrant of control addressed to?

A

The Enforcement Officer

47
Q

What are the three stages of a ‘Taking Control of Goods (‘TCG’)’ after the warrant/writ has been given to the EO?

A

(1) Giving notice to the judgment debtor of enforcement

(2) Entering premises and securing the goods

(3) Sale of the goods

48
Q

How many days notice does the EO need to give the judgement debtor before taking control of goods?

A

7 clear days

49
Q

How long after serving notice does the EO have to seize the goods of the judgement debtor?

A

12 months

50
Q

What are the restrictions on an EO on entering the premises and securing goods?

A
  • The EO may use reasonable force to enter premises if necessary (this does not include using force against persons)
  • must generally not take control of goods before 6am or after 9pm on any day
  • must generally not take control of goods at any premises when a child or vulnerable person is the only person present
51
Q

What is the alternative for an EO of siezing goods?

A

Controlled goods agreement - an agreement whereby the judgment debtor is permitted to retain custody (and use) of the goods, despite the EO taking control of them, pending payment of the debt.

52
Q

True or False - The EO must sell the goods for the best price that can be reasonably obtained, and the sale will usually take place by way of public auction.

A

True

53
Q

What is a third party debt order?

A

Normally an order against the bank of the judgement debtor

54
Q

What types of bank account can’t a third party debt order be used against?

A

Joint accounts

55
Q

What is the procedure for a third party debt order?

A

SEARCH
- the third party to search for and disclose information to the court and judgment creditor.

  • Any third party, or judgment debtor, who objects to the making of the order must file and serve written evidence stating the grounds for the objection.

INTERIM ORDER
- an interim order to be made without notice to the judgment debtor. (This will be served on the third party first and prevents the third party from making any payment to the judgment debtor until further order.)

  • followed by an on notice hearing where the judgment debtor (and third party if they wish) will be heard.

CHARGING ORDER
- The court will decide whether to make a final order requiring the third party to pay the debt to the judgment creditor directly or to discharge the interim order.

56
Q

What is a Charging Orders on land or certain securities

A

a form of charge taken over land (or other specified assets) which secures a judgment debt

57
Q

What is the process for Charging Orders on land or certain securities

A

similar to third party order:

  • an interim charging order; followed by
  • a final charging order
58
Q

What is the process if the judgement creditor if they wish the land to be sold following a Charging Orders on land or certain securities?

A

They will need an ‘order for sale’.

59
Q

What is an Attachment of earnings order?

A

If the order is obtained:

a. The judgment debtor’s salary will have deductions made from it by their employer.

b. These deductions will be paid into court for onward transmission directly to the judgment creditor.

60
Q

What is the minimum debt that an Attachment to earnings can apply to?

A

£50

61
Q

What is the process for an attachment to earnings order?

A
  • The judgment creditor applies by
    • filing an application in a standard form,
    • certifying the amount of the judgment that is outstanding and
    • paying a fee.
  • The application and a reply form is served on the debtor who should complete and return the reply form to the court.
  • The court may then make an order (without the attendance of either party) attaching a proportion of the judgment debtor’s earnings.
62
Q

Who is an attachment to earnings order served on?

A
  • The order is served on the debtor and the judgment debtor’s employer who is required to make the appropriate deduction from the debtor’s earnings and pay it to court for onward transmission to the judgment creditor.
63
Q

What is the minimum debt that insolvency proceedings can be brought against an individual?

A

£5,000

64
Q

What is the minimum debt that insolvency proceedings can be brought against an company?

A

£750

65
Q

What is the process for insolvency?

A

Once the petition is issued, it is served on the judgment debtor.

The court fixes a time for the hearing of the petition and the debtor will therefore be notified of a date to attend a court hearing to decide whether a bankruptcy order or winding-up order should be made against them.

66
Q

What happens if the debtor does not turn up for an insolvency hearing

A

order will very likely be made.

67
Q

What happens following an insolvency order?

A

The debtor’s assets will be distributed to their creditors according to very specific rules setting out the order of preference of particular types of creditor (eg employees, secured creditors, unsecured creditors and so on.)

68
Q

What is a statutory demand?

A

A precursor to insolvency proceedings being commenced a demand in a standard form.

69
Q

What is the relevant period in a statutory demand?

A

21 days after service of the demand

70
Q

What happens if payment has not been made by the expiry of the relevant period in the statutory demand?

A

So long as the debt remains unpaid for a period of 21 days after service of the demand, the debtor is at risk of the court presuming that he/it is unable to pay its debts and is therefore insolvent.

71
Q

What are the grounds of appeal?

A

the decision of the lower court was either:

  • Wrong; or
  • Unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
72
Q

In what ways can a decision by a lower court be ‘wrong’?

A
  • an error of law; or
  • an error of fact; or
  • an error in the exercise of the court’s discretion.
73
Q

Does an appellant require permission to appeal?

A

Yes

74
Q

How can the appellant request permission to appeal?

A

Apply for permission from the lower court at the time when the decision to be appealed is made. Done orally (parties are already before a judge).

AND/OR

Make the application in writing to the appeal court later.

75
Q

How is the application for an appeal dealt with in the Court of Appeal?

A
  • applications for permission will be determined on the papers alone, unless the judge considers that the matter should be dealt with orally. Any oral hearing will be listed within 14 days, unless the circumstances are exceptional.
76
Q

How is the application for an appeal dealt with in the County Court or High Court?

A
  • if that appeal court refuses the paper application for permission, the appellant may normally request (within 7 days after service of the notice refusing permission) that the decision be reconsidered at an oral hearing.

If permission is refused at that oral hearing, no appeal against that decision is possible.

77
Q

If the County/High Court refuses an application for an appeal following an oral hearing, can the appellant appeal that decision?

A

No

78
Q

How long has the appellant got to request a permission to appeal?

A

21 days of the date of the lower court’s decision, can request an extension

79
Q

Will a delay in drawing up a judgement delay the time running on making an application for appeal?

A

No

80
Q

What is the test by the court for allowing a first appeal?

A
  • that the appeal would have a real prospect of success;

OR

  • that there is some other compelling reason why the appeal should be heard.
81
Q

What is the test by the court of appeal for allowing an appeal?

A
  • the appeal would have a real prospect of success AND raises an important point of principle or practice;

OR

  • there is some other compelling reason for the Court of Appeal to hear it.
82
Q

Does an appeal stay the order from the lower court?

A

No

83
Q

Who do you appeal to: County Court District Judge

A

County Court Circuit Judge

84
Q

Who do you appeal to: County Court District Judge (non-insovency)

A

High Court

85
Q

Who do you appeal to: County Court Circuit Judge

A

High Court Judge

86
Q

Who do you appeal to: High Court Master

A

High Court Judge

87
Q

Who do you appeal to: High Court Judge

A

Court of Appeal

88
Q

What orders can an appeal judge make?

A
  • dismiss the appeal
  • affirm, set aside or vary any order or judgment made or given by the lower court;
  • refer any claim or issue for determination by the lower court;
  • order a new trial or hearing;
  • make orders for the payment of interest;
  • make a costs order.

SQE 1 (149 decks)

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