DR - Trial, enforcement and appeals Flashcards
(180 cards)
1
Q
What is form N170?
A
The pre-trial checklist, AKA the listing questionnaire, used in fast, intermediate, and multi-track claims.
2
Q
What is the pre-trial checklist?
A
Document provides court with an opportunity to:
- check that the case management directions previously given have been complied ith and that case is ready for trial;
- give any further necessary directions; and
- fix/confirm a date for trial
3
Q
What is the purpose of the pre-trial checklist?
A
Confirm compliance with prior directions
Identify further directions needed
Fix or confirm the trial date
Ensure parties are ready for trial
4
Q
When must the pre-trial checklist be filed?
A
At least 14 days before the due date for filing, which must be at least 8 weeks before the trial date or start of the trial period.
Parties encouraged to exchange copies of the pre-trial checklists before filing
5
Q
What information must be included in the pre-trial checklist?
A
Directions complied with or not
Further directions requested + draft order
Expert evidence consent + discussions
Dates experts unavailable
Witness details and needs
Advocate details and availability
Estimate of trial length
Proposed trial timetable (preferably agreed)
6
Q
What are the key documents and steps involved in preparing for trial?
A
Pre-trial checklist
Pre-trial review
Skeleton arguments
Case summary
Trial bundle
Witness summons
Authorities
Notices to admit facts
Brief to counsel
7
Q
What 3 directions must the court give at the listing hearing? (PD29)
A
Fix (or confirm) the trial date
Give a time estimate for trial
Fix the place of trial
8
Q
What directions may the court give at the listing hearing?
A
Directions about expert evidence or special arrangements
A trial timetable
Preparation of trial bundles
Any other steps needed to prepare for trial
9
Q
What is the purpose of the pre-trial review?
A
To check that all previous orders and directions have been complied with and to give directions for the conduct of the trial.
10
Q
What is the purpose of a trial bundle?
A
To ensure all relevant material is before the court so the trial runs smoothly. It helps advocates present the case and helps the judge with pre-trial reading.
11
Q
Who is responsible for filing the trial bundle, and when?
A
The claimant must file it no more than 7 days and no less than 3 days before trial.
12
Q
What happens if the parties disagree on the content of the trial bundle?
A
A summary of the disputed points should be included in the bundle.
13
Q
What format must trial bundle documents follow?
A
Paginated and indexed (CPR 39 and 32 PD 27).
14
Q
What must the party filing the trial bundle also supply?
A
Identical bundles to all parties and an extra set for witnesses.
15
Q
What documents should a trial bundle contain?
A
Claim form & statements of case
Case summary / chronology
Part 18 requests and replies
All witness statements
Witness summaries
Hearsay notices
Notices re: other evidence
Medical & expert reports (+ responses)
Any case management orders
Any other relevant documents
16
Q
What is a reading list and when is it required?
A
Filed in High Court (Chancery & King’s Bench) cases with the bundle; shows reading time needed + hearing length. Must be signed by all advocates.
17
Q
What is a skeleton argument?
A
A written summary of legal submissions & authorities. Usually done by counsel and lodged at court before trial.
18
Q
When must the list of authorities be submitted for a High Court hearing?
A
By 5pm the day before the hearing.
Notifies the court which legal reports to bring to the hearing.
Usual: agree + exchange list of authorities with the other side
19
Q
What is the case summary?
A
A short, non-contentious summary of the issues in the case, usually agreed by both parties.
20
Q
What happens if a case settles between listing and trial?
A
The parties must notify the listing officer immediately to reallocate the time. Otherwise, costs penalties may be imposed.
21
Q
What is a notice to admit facts or documents?
A
A formal request that the other party admits a fact or document under CPR 32.18–19. Failure to admit may lead to cost consequences.
22
Q
What happens if a party ignores a notice to admit?
A
If they don’t admit and lose on the point, they may face costs penalties for wasting trial time.
23
Q
What is a brief to counsel?
A
Instructions to appear at trial, sent with full case docs. Should be delivered in good time.
24
Q
What is the ‘refresher’ fee in a brief?
A
The daily fee for each day of trial after the first.
25
What is a witness summons and when is it used?
Used to compel a reluctant witness or expert to attend trial or produce evidence (Form N20, CPR 34.2).
26
Who normally prepares the trial bundle?
Claimant
27
What happens if a party doesn’t respond to disclosed documents under CPR 31?
They are deemed to admit the authenticity of those documents unless they serve notice that they require the document to be proved at trial (CPR 31).
28
What is the trial?
The hearing where the substantive issues before the parties are decided by the court, having heard all the witnesses give their evidence.
29
What is the order made at trial?
Judgment/final order
This is the order which ends the claim
It also makes provision for costs.
30
What happens in the claimant's opening speech?
Counsel described nature of claim + identifies issues to be tried by ref. to the statements of case
31
When may opening speeches not be used?
Judge may dispense with need for them in smaller cases.
32
Are courtroom etiquette rules set out in the CPR?
No — they are not formally included in the CPR.
33
How should a judge be addressed in court?
Indirectly — e.g. “Has Your Honour received my skeleton argument?” (Avoid using “you”.)
34
What term should you use to refer to the opposing advocate?
“My learned friend” if a barrister, “my friend” if a solicitor.
35
If you speak first in court, how should you introduce yourself?
State your opponent’s name and the party you represent — do not say your own name.
36
What is the usual order of events at trial?
Claimant’s opening speech
Claimant’s case – evidence in chief, cross, re-examination
Defendant’s case – evidence in chief, cross, re-examination
Defendant’s closing speech
Claimant’s closing speech
37
What is “evidence in chief”?
The main evidence from a party’s witness, which stands as their witness statement unless the court orders otherwise (CPR 32.5(2)).
38
What is the purpose of cross-examination?
To challenge the credibility of the witness or expose weaknesses in their evidence. Conducted using leading questions.
39
What is the purpose of re-examination?
To clarify or expand on issues raised in cross-examination.
40
Who gives the first closing speech at trial?
The defendant.
41
What does each side do in closing speeches?
Summarise the evidence and explain the inferences to be drawn in support of their case.
42
What else do judgments usually include apart from the outcome?
A costs order — usually requiring the losing party to pay the winner’s costs.
43
What are interim orders?
Orders made during the course of litigation that do not end the claim.
44
What is a disposal hearing?
A second hearing (after liability is decided) to assess damages. Used when liability and quantum need separate hearings.
45
When can a judgment be reserved?
When the judge delays handing down the decision — they usually circulate a draft to parties by 4pm two working days before handing down.
46
When does a judgment or order take effect?
On the date it is made or given, not when it is served (CPR 40.7).
47
How long do parties have to comply with a money judgment?
14 days from the date of the order, unless stated otherwise (CPR 40.11).
48
What is the default interest rate on judgment debts?
8% per annum under s17 of the Judgments Act 1838 (as amended).
49
What is 'drawing up' an order
Setting the order out in the formal document to be sealed by the court
The court — but a party may do so if ordered or with permission. Must file it within 7 days. If not filed within 7 days, any other party may do so instead.
50
What is a consent order?
An order reflecting agreement between the parties, drawn up and signed by them.
51
When must a party-drawn order be filed?
Within 7 days of the party becoming responsible for drawing it up, so the court can seal it.
52
What must a party drawing up an order also file at the same time?
Sufficient copies for service on themselves and all other parties (CPR 40.4). Once sealed, the court will serve the sealed order on everyone (unless it directs that a party is responsible for service)
53
Can the court review and approve the draft judgment/order before sealing?
Yes — the court can check and approve the contents first and involve other parties in agreeing the contents.
54
When does interest start running on the judgment debt?
From the date judgment is given (CPR 40.8).
55
What does the 14-day compliance period cover?
The full payment amount plus any interest accrued from the judgment date.
56
Can the court grant a stay of execution of a judgment?
Yes — the court has discretion to allow a stay (i.e. delay enforcement) under CPR 40.8A.
57
What are possible reasons for granting a stay of execution?
New circumstances arising after judgment — e.g. pending appeal.
58
What is the Debt Respite Scheme?
A scheme providing temporary protection from enforcement of a judgment debt for some individual debtors.
59
Who can apply for breathing space under the scheme?
An individual debtor (not a company), through a debt advice provider.
60
How long is the standard breathing space period under the Debt Respite Scheme?
60 days
61
How does a breathing space period begin?
Individual debtor approaches a debt advice provider to ask for breathing space - on basis that they are unlikely to be able to repay - provider must apply via the insolvency service, which notifies the debtor’s creditors.
62
What happens during the breathing space
All enforcement actions, interest, fees, penalties, and creditor contact must stop — unless the court gives permission.
63
What must the court ensure if it gives permission to continue enforcement?
That any enforcement action related to breathing space debt stops during the breathing space.
64
What is excluded from the Debt Respite Scheme?
Judgments for damages for death or personal injiury
65
When can a longer breathing space be used?
Mental Health Crisis Moratorium
66
What are enforcement proceedings?
Steps taken by the judgment creditor to obtain payment from the judgment debtor after judgment.
67
Who is the judgment debtor?
The party who owes the money — CPR 70.1(2)(b).
68
Who is the judgment creditor?
The party entitled to receive payment — CPR 70.1(2)(a).
69
Can the court enforce judgment automatically?
No — the judgment creditor must apply for enforcement.
70
What condition must be met before enforcement can start?
The debt must be due and payment time must have passed without payment (either the time specified in the judgment itself or in the rules) (CPR 40.11).
71
When should a party consider the debtor’s ability to pay?
Both before proceedings begin and as the case progresses.
72
What can the creditor apply for post-judgment to investigate debtor assets?
An order to obtain information under CPR 71 — also known as oral examination.
73
What does CPR 71 allow?
An order requiring the debtor (or officer of a company) to attend court and give info about their assets.
74
What forms are used for CPR 71 orders?
Form N316 (individuals), Form N316A (companies).
75
Can the CPR 71 order be made without notice?
Yes — under CPR 71.2(2), notice to the debtor is not required.
76
What must the CPR 71 order include?
A penal notice warning the debtor that non-compliance may result in contempt of court or seizure of assets (CPR 71.2(7)).
77
What is the minimum notice for serving a CPR 71 attendance order?
It must be served personally on the person ordered to attend court at least 14 days before the hearing (CPR 71.3(1)).
78
What are the 4 main methods of enforcing money judgments?
Writs/warrants of control
Third-party debt orders
Charging orders
Attachment of earnings orders
79
Can a creditor use more than one enforcement method?
Yes — they may use multiple methods simultaneously or one after the other (CPR 70.2(2)).
80
Where can attachment of earnings orders be used?
Only in the County Court.
A High Court judgment can be enforced using attachment of earnings - creditor must apply to transfer proceedings to County Court for enforcement
81
Why might a County Court judgment be transferred to the High Court?
To use a High Court enforcement officer to take control of goods or enforce large debts.
82
What are the monetary limits for choosing the correct court for enforcement?
If the sum is £5,000 or more, enforcement must be in the High Court
If the sum is less than £600 or it's a Consumer Credit Act judgment, enforcement must be in the County Court
83
Why is it important to investigate a debtor’s means before and after judgment?
Before judgment: To decide if litigation is worth the cost.
After judgment: To choose the best method of enforcement (based on the debtor’s assets, location, or ability to pay).
84
What are 4 formal ways to investigate a debtor’s means?
Company searches
Land Registry searches
Public registers (e.g. Insolvency, Judgments, Earnings)
Enquiry agents
85
When should you instruct an enquiry agent?
Only when necessary — they’re expensive. Misconduct by the agent will be imputed to the solicitor, so use a reputable firm or do it yourself where possible.
86
What 3 things can company searches reveal?
General solvency
Company’s assets
Whether those assets are charged (secured)
87
What does the Land Charges Registry show?
Restrictions/charges on a debtor’s property. Useful to assess whether an order for sale would be effective.
88
Why is the Individual Insolvency Register important?
It lists bankrupt individuals and those with IVAs (Individual Voluntary Arrangements) or debt relief orders — these affect how and whether assets can be enforced against.
89
What does the Register of Judgments, Orders and Fines show?
All CCJs from April 1990 onward (recorded for 6 years)
High Court judgments since April 2006
Whether your debtor has unpaid judgments
Who else is enforcing against them
Debtor's name, address and amount of outstanding debt
90
Why does it matter if the opponent is legally aided?
Because even if your client wins, they may not recover costs or damages, as legally aided opponents may be shielded from liability. This affects litigation strategy from the outset.
91
What is asset dissipation, and why is it a risk?
It’s when the opponent disposes of or hides assets to avoid paying after judgment. This means winning the case might not lead to payment.
Consider urgent protective measures, like a freezing injunction, to preserve assets before judgment is enforced.
92
Significance of an insured opponent
insurer may pay damages and/or costs. This improves the chance your client gets paid — especially in cases involving compulsory cover (e.g. employers' liability or motor insurance).
93
What does the Hague Convention apply to?
Enforcing judgments between contracting states, where the English court had exclusive jurisdiction by agreement.
94
What applies if no treaty or convention governs the country?
Common law rules in that foreign country — often harder, more costly, and requires advice from a local lawyer.
95
What must be done to enforce a foreign judgment in England under common law?
Start a claim treating it as a debt, serve the proceedings, then apply for summary judgment under CPR 24.
Only applicable if the judgment is final and there is no appeal in the foreign court
96
You want to enforce a judgment against a debtor’s assets held in another country. What must you identify before doing anything else?
Which foreign jurisdiction is involved and what regime (if any) applies — treaty, convention, or common law.
97
What governs the procedure if there is no applicable regime in a foreign jurisdiction?
The common law of the foreign country and CPR Part 74 in England.
98
What evidence must support a CPR 74 application to enforce abroad?
Grounds for original judgment
Jurisdiction challenge details (if any)
Confirmation of service
Appeal status
Interest recoverability
99
When addressing in court a High Court Judge, which of the following is in-keeping with court room etiquette?
Would My Lord / Lady like me to provide a summary of the facts?
100
Judgment is given on 6 March against the Defendant in the sum of £10,000. The judgment is silent as to by when this must be paid. By when must it be paid?
20 March
101
What usually occurs after the claimant’s opening speech at trial?
Claimant’s evidence in chief
102
Will an order to obtain information from a judgment debtor under CPR 71 always contain a penal notice?
Yes, this is a requirement so that the judgment debtor can be imprisoned or fined if they do not comply with the order to attend court and answer questions.
103
When is the best time to first consider / investigate an opponent's means?
Before commencing proceedings
104
In respect of the hearing following the order to obtain information from a debtor…
The debtor will be given at least 14 days’ notice of the date of the hearing when they must attend court.
105
A significant advantage of an order to obtain information in comparison with asking for information by correspondence is…
The debtor might be fined if they refuse to cooperate.
106
Companies House is useful when it comes to investigating a company's ability to satisfy a judgment because…
…it keeps annual accounts for registered companies.
107
What is the purpose of TCG?
To allow an enforcement officer (EO) to seize and sell the debtor’s goods to pay the judgment debt and enforcement costs.
108
Who qualifies as an enforcement officer (EO) for TCG?
Includes former bailiffs and High Court enforcement officers (sheriffs).
109
What are the key conditions for goods to be seized under TCG?
Goods must be owned by the debtor
No valid third-party claims over them (e.g. co-owners or higher-ranking creditors)
110
What are exempt goods under TCG?
Tools of the trade up to £1,350
Basic domestic items (e.g. clothing, furniture, bedding)
111
What court should be used for TCG based on debt value?
Up to £600 → County Court only
£600–£5,000 → Either court
Over £5,000 → High Court only
Judgment creditor commences process by requesting issue of relevant court document and paying the applicable fee.
112
What document starts TCG enforcement?
County Court: Warrant of control
High Court: Writ of control
Both documents are addressed to the EO
113
What must the writ/warrant of control contain?
Both are addressed to the EO.
Contain:
- the necessary details + debt details
- a fixed amount for the costs of TCG will be added which includes the court fee
114
EO CAN TAKE THEIR OWN CHARGES OUT OF THE PROCEEDS
115
What is the TCG 3-stage procedure?
Notice of enforcement
Entry and securing of goods
Sale of goods
116
What is the rule on giving notice before TCG?
EO must give at least 7 clear days' notice must be given before taking control of goods. EO has 12 months from date of notice to enforce.
117
Can force be used to enter premises for TCG?
Yes — reasonable force for premises, not against people.
118
When is TCG entry prohibited?
Before 6am or after 9pm
If only a child or vulnerable person is present
119
What must be provided after entry for TCG?
A notice listing seized goods, EO’s details, property address, and what was taken.
120
What is a controlled goods agreement?
An agreement letting the debtor keep the goods in exchange for payments. Breach may trigger seizure.
121
How does sale of possessed goods take place
EO must sell for best price that canb e reasonably obtained. The sale will usually take place by way of public auction.
Sum specified in the writ or warrant of control will be paid to the judgment creditor out of the proceeds of sale. Surplus funds are paid back to judgment debitor.
122
What is a third-party debt order?
Intercepts funds owed to the debtor before they reach them, and redirects payment to the creditor.
Can be ordered:
When there is a debt due or accruing to the debtor by a third party within the jurisdiction (CPR 72.2(1)).
123
What is the procedure for a third-party debt order?
Judgment creditor makes the application in form N349.
Third-party must search for and disclose whether they owe money to the judgment debtor, and inform the court and the judgment creditor of the result.
124
What is the correct order of steps in the third-party debt order procedure?
Creditor applies using Form N349 (CPR 72 PD)
Court makes interim order without notice (CPR 72.4)
Interim order is served on third party (freezes payment)
Interim order is then served on judgment debtor
On-notice hearing held (debtor and third party may object)
Court decides to make the order final or discharge the interim order
125
Who can object to a third-party debt order?
The third party or the judgment debtor — they must file and serve written evidence stating their grounds for objection (CPR 72.6).
126
What does the court decide at the hearing for a third-party debt order?
Make the order final, requiring the third party to pay the creditor, or
Discharge the interim order.
127
What is a charging order?
A charge over land (or other specified assets) to secure a judgment debt — it does not itself produce money.
128
What is the effect of a final charging order?
It secures the creditor’s right to be paid from sale proceeds when the property is sold, subject to prior mortgages and co-owners’ rights.
129
What is the procedure for obtaining a charging order?
Judgment creditor needs to obtain:
a) an interim charging order; and
b) a final charging order
130
Where is the attachment of earnings procedure available?
Only in the County Court. If the judgment is in the High Court, it must be transferred first.
131
When can an attachment of earnings order be used?
The judgment debt is at least £50
The debtor earns a salary from employment
Debtor doesn’t have substantial assets
132
What happens if the attachment of earnings order is granted?
Employer makes salary deductions
Payments go to the court
Court sends money to the judgment creditor
133
What are the procedural steps to obtain an attachment of earnings order?
Creditor files an application with fee, certifying debt amount
Application and reply form are served on the debtor
Debtor completes and returns reply form
Court (with or without hearing) makes order attaching earnings
Order served on employer, who deducts and pays court
134
What problems can arise with attachment of earnings?
Court may issue a personal service order. Continued failure can eventually lead to committal proceedings (possible imprisonment), but further hearings are required.
135
What should you do if the debtor has:
(a) Moveable assets
(b) Debts owed by others
(c) Real property
(d) Earnings
(e) Unknown asset situation
(a) TCG – transfer to High Court if >£5,000
(b) Third-party debt order
(c) Charging order, then order for sale
(d) Transfer to County Court, then apply for attachment of earnings
(e) Use CPR 71 order, enquiry agents, and research
136
When can a bankruptcy petition be issued against an individual?
When the judgment debt is more than £5,000.
137
When can a winding-up petition be issued against a company?
When the debt is more than £750.
138
What is the basic procedure for insolvency proceedings?
Petition is issued and served on debtor
Court fixes a hearing date
If debtor does not attend, court may grant bankruptcy/winding-up order
Debtor’s assets are distributed to creditors by priority rules
139
What happens after a bankruptcy or winding-up order is made?
Debtor’s assets are distributed pari passu (proportionally) unless creditors are preferred (e.g. employees, secured creditors).
140
Why does it matter if your client is a preferred creditor?
Preferred creditors are paid before others. If your client is not preferred, they’ll be lower in the queue and may recover nothing.
141
What is a statutory demand?
A formal written demand for debt that, if unpaid for 21 days after service, supports a presumption of insolvency.
142
Why use a statutory demand before starting insolvency proceedings?
It is a cheap, fast way to pressure the debtor. If unpaid, it strengthens the insolvency case and is hard for the debtor to defend.
143
Why do clients often prefer insolvency proceedings?
The threat of bankruptcy/winding-up is serious. Debtors may pay to avoid reputational damage or being banned from directorships.
144
What’s the main purpose of a charging order?
To provide security for payment against land — not payment itself. You need a separate order for sale to realise funds.
145
How can insolvency proceedings help even before a petition is granted?
The threat of bankruptcy or winding-up often prompts payment, especially if the debtor has assets or cares about public record/reputation.
146
What are the key concepts when considering an appeal?
Grounds of appeal - whether grounds exist and the likelihood of success of an appeal
Permission to appeal - nearly always needed
Destination (or route) of an appeal - which court/judge will hear the appeal
147
When will an appeal court allow an appeal?
Appellant satisfies the appeal court that 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 (onerous ground to prove)
148
What form do appeals take?
Review of the lower court's decision based on the evidence and representations the lower court heard - not a re-hearing of the matter in question
149
What can cause a decision to be wrong?
Error of law, or of fact, or in the exercise of the court's discretion
150
When might an appeal court be reluctant to declare the lower court's decision wrong?
That decision was primarily based on an assessment of evidence which the appeal court is unable to conduct.
151
How might a decision in a lower court have been unjust?
Onerous ground to prove - must be a serious irregularity and it must have caused the decision to be unjust.
- A party being given no chance to make submissions
- A party's submissions or too much of their skeleton argument being incorporated into the judgment
- The lower court judge having been involved in previous proceedings
- the manner in which the judge handled the evidence
152
An appellant argues there was a serious procedural irregularity in the lower court, but the final decision reached was arguably still correct. Could this still form a valid ground of appeal?
Yes — procedural unfairness can be a ground of appeal even if the outcome was correct. What matters is whether the irregularity caused the process to be unjust, not whether the final result was legally right.
153
Do you need permission to appeal?
Yes — in almost all cases (except where statute or rule says otherwise). You must apply for permission before the appeal can proceed (CPR 52.3).
154
What are the two ways a prospective appellant can seek permission to appeal?
From the lower court at the time judgment is given (orally) - doesn't prevent later application to the appeal court
AND/OR
From the appeal court later (using Form N161, in writing)
- can pursue even after unsuccessful application in lower court
- no hearing
- more time to prepare the application
155
Does applying to the lower court prevent a later application to the appeal court?
No — you can still apply to the appeal court if permission is refused by the lower court.
156
How are applications for permission dealt with in the Court of Appeal?
By default: on the papers only (CPR 52.5). An oral hearing is only listed if the judge believes it’s necessary to fairly determine the application.
(And will be listed within 14 days)
157
What happens if permission is refused by the County Court or High Court on the papers?
If refused permission on paper in County/High Court, can request oral hearing within 7 days. If refused again, no further appeal possible.
158
What is the general time limit for appealing (including seeking permission)?
Within 21 days of the lower court’s decision — using Form N161 (CPR 52.12(2)(b)).
159
Can the court allow extra time to appeal?
Yes — apply to the lower court under CPR 52.12(2)(a) with good reason (e.g. illness, late service of judgment).
160
Does delay in formally drawing up the judgment delay the appeal deadline?
No — the time runs from when the judgment is given or made, not from when it is sealed or drawn up (CPR 40.7(1)).
161
What is the test for granting permission to appeal (first appeal)?
One of the following must be satisfied:
Real prospect of success, or
Some other compelling reason to hear the appeal
162
What is the test for permission to appeal (second appeal)?
Real prospect of success, AND
Raises an important point of principle or practice, or
Some other compelling reason for the Court of Appeal to hear it
163
What happens if permission is granted?
The appeal can proceed. The appellant’s notice (N161) forms the basis of the appeal, including:
Grounds of appeal
Evidence and documentation
Procedure to final hearing
164
Does permission to appeal automatically stop enforcement of the order of the lower court?
No — a stay of execution must be applied for separately to the High Court or Court of Appeal - to prevent irreversible action (e.g. demolishing a building under an order being appealed), in the interest of justice.
165
Who hears an appeal from a County Court District Judge?
County Court Circuit Judge.
166
Who hears an appeal from a County Court District Judge in Companies Act (non-insolvency) matters?
High Court.
167
Who hears an appeal from a County Court Circuit Judge?
High Court Judge.
168
Who hears an appeal from a High Court Master?
High Court Judge.
169
Who hears an appeal from a High Court Judge?
Court of Appeal.
170
What does the general rule say about appeal routes?
Appeals lie to the next level of judge in the court hierarchy (52APD 3.5).
171
What powers does the appeal court have in relation to the lower court's judgment?
It may:
(a) Affirm, set aside, or vary the order
(b) Refer a claim or issue back to the lower court
(c) Order a new trial or hearing
(d) Make interest orders
(e) Make a costs order
—or dismiss the appeal
172
Can the appeal court substitute its own judgment for the lower court’s?
Yes — the appeal court has all powers of the lower court
173
Do appeals normally involve a re-hearing?
No — they are generally a review of the lower court’s decision.
174
Is permission always required to appeal?
Yes — permission is required from either the lower court or the appeal court.
175
When should permission to appeal be sought?
Generally within 21 days of the lower court’s decision.
176
What is the test for granting permission to appeal?
That the appeal has:
A real prospect of success, or
Some other compelling reason why it should be heard.
177
Does the appeal route always mean going to a different court?
No — appeals can be heard within the same court (e.g. District → Circuit Judge).
178
What range of orders can the appeal court make?
It can:
Replace the lower court’s decision
Refer issues back
Order a retrial
Vary or dismiss the judgment
Make orders on costs or interest
179
Can a judgment creditor apply for a charging order without giving advance notice to the debtor, lender, or joint owner?
Yes. The application for a charging order is made without notice.
Notice is only required after the interim charging order is made.
It must then be served on:
The judgment debtor
Any co-owners (e.g. spouse)
Any secured lenders (e.g. mortgage company)
180
