written exercise - q3 (stat demand and jurisdiction)

Question 1

security for costs app

Answer 1

not super relevant here as C is fine D, is problem whereas sfc is usually for D to secure c’s costs

two points to satisfy under r25.13(1):

(a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and

(b) one or more of the conditions in Part 25 applies.
C is based outside Hague Convetnion
The claimant is a company or other body and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so.
The claimant has changed address to evade the consequences of the litigation.
The claimant has failed to provide an address, or has given an incorrect address.
The claimant is acting as a nominal claimant and there is reason to believe they will be unable to pay the defendant’s costs.
The claimant has taken steps in relation to their assets that would make it difficult to enforce an order for costs against the

Security for costs is usually D tool

Question 2

sfc app against non claimant

Answer 2

can also make app against non claimant if it is just and one or more of the following conditions is satisfied
(a) has assigned the right to the claim to the claimant with a view to avoiding the possibility of a costs order being made against him; or
(b) has contributed or agreed to contribute to the claimant’s costs in return for a share of any money or property which the claimant may recover in the proceedings; and
is a person against whom a costs order may be made.

Question 3

enforcement of money judgments

Answer 3

County Court usually used for enforcing money judgments
County Court Enforcement
Application: Can be made at any County Court hearing centre unless specified otherwise.
Transfer of Proceedings: Notice given to parties if proceedings are transferred; further steps must be taken in the new court.

High Court Enforcement in County Court
Documents Required: Copy of judgment/order, certificate verifying amount due, enforcement officer’s return, and order transferring proceedings.

Question 4

general methods of money enforcement - short

Answer 4

1. taking control of goods
2. third party debt orders
3. charging orders
4. attachment of earnings
5. insolvency proceedings
6. appointment of receiver
7. writ of sequestrian
8. contempt of court

Question 5

methods of money enforcement - long

Answer 5

1. Taking Control of Goods - apply for warrant of control
   Writs and Warrants of Control: Obtain a writ or warrant from the court.
   Execution: Enforcement agents seize and sell the debtor’s goods.
   Proceeds: Used to satisfy the judgment debt.
   from gov website:
   A warrant of control authorizes court enforcement agents to take goods from the defendant’s home or business to either:
   Collect the money owed.
   Sell goods at auction.
   Key Points:
   County Court Limit: Cannot issue a warrant for amounts over £5,000 unless under the Consumer Credit Act 1974.
   High Court Procedure: More complex and expensive; advice from a solicitor or Citizens Advice is recommended.
   Family Court: Can issue warrants for any amount; enforcement agents cannot remove essential items or goods under hire-purchase agreements.
   Value of Goods: Goods must be worth enough to cover the warrant and associated costs; goods sold at auction often fetch less than their original value.
   Existing Warrants: Goods may already be seized under another warrant.
2. Third Party Debt Orders - apply for third party debt and charging order
   Application: Apply to the court for an order.
   Freezing: Court freezes the debtor’s bank account or other debts owed to them.
   Seizure: Funds are transferred to the judgment creditor.
   A third-party debt order typically freezes the defendant’s bank or building society account, preventing them from withdrawing money. The owed amount is paid to you from the account.
   Key Points:
   Freezing Accounts: The bank or building society freezes the account upon receiving the order.
   Overdrawn Accounts: If the account is overdrawn, you cannot be paid from it.
   Notification: The defendant is notified of the order and may stop depositing money into the account.
3. Charging Orders
   Application: Apply to the court for a charging order.
   Registration: Register the charge against the debtor’s property.
   Sale: Property may be sold to satisfy the debt.
   A charging order prevents the defendant from selling their assets (such as property, land, or investments) without paying what they owe you.
   Key Points:
   Asset Sale: You receive your money when the defendant sells their assets.
   Forced Sale: In some cases, you can ask the court to force the defendant to sell their assets.
4. Attachment of Earnings - apply for attachment of earnings order (in the County Court only)
   Application: Apply to the court for an attachment of earnings order.
   Deduction: Employer deducts a portion of the debtor’s salary.
   Payment: Deductions are paid to the judgment creditor.
   An attachment of earnings order directs the defendant’s employer to deduct a specified amount from the defendant’s earnings each payday and send it to a collection office, which then forwards the money to you.
   Key Points:
   Employment Requirement: The defendant must be employed; the order cannot be made if the defendant is unemployed or self-employed.
   Living Expenses: The court may not make an order or may only order small instalments if the defendant’s living expenses exceed their earnings.
5. Insolvency Proceedings
   Bankruptcy: Petition for the debtor’s bankruptcy.
   Liquidation: Petition for the liquidation of a company.
   Distribution: Assets are distributed to creditors.
6. Appointment of a Receiver
   Application: Apply to the court for the appointment of a receiver.
   Management: Receiver manages the debtor’s assets.
   Execution: Assets are used to satisfy the judgment.
7. Writ of Sequestration
   Application: Apply to the court for a writ of sequestration.
   Control: Enforcement agents take control of the debtor’s property.
   Sale: Property may be sold to satisfy the debt.
   `
8. Contempt Proceedings
   Application: Apply to the court for contempt proceedings.
   Sanctions: Court imposes sanctions for non-compliance.
   Compliance: Debtor is compelled to comply with the judgment.

Question 6

considerations when choosing method of money enforcement

Answer 6

you are likely to get your money and court fee from the defendant
the defendant owes other people money or has other court judgments
the defendant owns any goods or assets which can be taken and sold at auction
the defendant is working
the defendant has other earnings, such as income from investments
the defendant has a bank, building society or other account
the defendant owns property (such as a house)
anyone else owes the defendant money
CHECK IF D HAS ANY OTHER JUDGMENTS AGAINST IT

Question 7

req for stat demand juris

Answer 7

Can only serve stat demand on company within winding up jurisdiction of courts of England and Wales
- Company registered in England and Wales
- COMI in UK or COMI in EU and an establishment in the UK (insolvency reg)
- An unregistered company (including a foreign company) under s221(1) but limited discretion
o But need sufficient connection with England Wales
o Reasonable possibility of benefit to those applying for winding up order (Re Buccament Bay Ltd and Harlequin Property) - could not serve stat demand as English winding up order would not be enforced in SVG law; no other legislation facilitating cross-border cooperation and liquidator appointed by English courts would face practical difficulties in gaining control of debtors’ assets)
 english winding up order would not be enforced
 would face difficulties in gaining control of assets in Ukraine
o One or more persons interested in the distribution of assets of the company is a person over whom the court can exercise jurisdiction

Question 8

how would stta demand be enforcd

Answer 8

If they did have jurisdiction and got the order, how would it be enforced?
- Couldn’t use Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters as Ukraine has signed but not ratified and will only apply to UK judgments after 1 July 2025
- Regardless, the convention excludes insolvency, bankruptcy and similar proceedings from its scope
- Would need to seek recognition via Ukrainian civil procedure or initiate separate insolvency proceedings in Ukraine
Cannot rely on UNCITRAL Model Law on cross-border insolvency as Ukraine has not adopted it

Question 9

winding up process/

Answer 9

• Serve stat demand personally
• The statutory demand would explain that Ukro-Hospitals has 21 days after service of the demand to make payment to Elephant. If payment is not received by this date, Elephant would have grounds to issue winding up proceedings, as Ukro-Hospitals would be deemed insolvent.
• Ukro-Hospitals may still seek an injunction to prevent Elephant from filing a petition if it (i) has a counterclaim, (ii) disputes the debt, (iii) holds security with a minimum value of the debt and/or (iv) presents other persuasive grounds.
• If no payment, file winding up petition
• Pay official receiver deposit within 7 days – court will then send sealed application
• Serve sealed petition on company via personal service and verify using certificate of service
• File certificate of service
• Publish petition in gazette
• File certificate of compliance and gazette notice
• Hearing

Question 10

structure of escrow paymetn - included in insolvency?

Answer 10

• Trust – funds are held by the agent (bank of slough) for the creditor, not the debtor (i.e. for Elephant). This ringfences the payment and means Elephant can claim them in full outside the waterfall
• If Ukro-Hospitals still has the benefit, the funds would be part of the insolvency estate (conditional payment mechanism rather than true security)