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Dispute Resolution > WS9: Trial, enforcement and appeals > Flashcards

WS9: Trial, enforcement and appeals Flashcards

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1
Q

How is a settlement often recorded?

A

Consent order

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2
Q

What are the three types of consent order?

A
  • Based on a contract - rarely interfered with by court
  • Not based on a contract - parties just agreeing terms of settlement - order can be altered or varied by the court
  • Tomlin Order
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3
Q

What is a Tomlin Order?

A

Type of consent order where part of it is public and the second part is private and details the agreement reached between the parties
* Part 1: Order
* Part 2: Schedule

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4
Q

When is a Tomlin Order used?

A
  • Parties want the terms to be confidential
  • Agreed terms go beyond those that court could generally order as part of proceedings
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5
Q

What is in Part 1 of a Tomlin Order?

A

Public, looks like any other consent order. Will contain actions to be taking by the court, and any direction for payment of money out of the court

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6
Q

What is in Part 2 of a Tomlin Order?

A

Confidential schedule of terms of agreement, which are enforceable

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7
Q

When should you submit a trial bundle before trial?

A

No more than 7 days, and no less than 3 days before trial

NB: as this is over 5 days, you need to think about not counting weekends

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8
Q

How does a consent or Tomlin order take effect

A

Parties must apply to court to have the order made once parties have agreed contents of the order

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9
Q

If an agreement has been reached during a stay, what is an incidental effect of an application for a consent order?

A

Application to court will also be considered an application to have the stay lifted

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10
Q

What happens if a settlement is recorded before proceedings are issued?

A

No need for a consent or Tomlin order - parties record agreement in a settlement agreement which is a form of contract

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11
Q

What would the procedure be if a settlement is reached regarding an interim application?

A

Settlement must be filed at court once agreed by both parties

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12
Q

Should a case summary be agreed between parties? Who will draft it?

A

Claimant’s counsel

Should be agreed

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13
Q

When must the court send a pre-trial checklist to the parties by?

A

Sent to each party at least 14 days before the due date for filing

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14
Q

When is the pre-trial checklist due?

A

At least 8 weeks prior to trial start date

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15
Q

Should parties exchange copies of the pre-trial checklist before filing?

A

yes, it is encouraged

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16
Q

What is a hearing after PTC has been filed called?

A

Pre-trial review

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17
Q

What kind of directions must the court give when they list a trial?

A
  • Court will fix the trial date
  • Time estimate for trial
  • Fix place of trial
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18
Q

What kind of directions MAY the court give on listing?

A
  • Evidence questions
  • Trial timetable
  • Preparation of trial bundles
  • Any other matters required to prepare the case for trial
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19
Q

What is the purpose of a trial bundle?

A

Ensure that all relevant material is before the court at trial, so that the trial proceeds smoothly and expeditiously

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20
Q

Who should lodge a reading list with the trial bundles?

A

Claimant

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21
Q

What is the purpose of a reading list?

A

Sets out an estimate of reading time the judge needs to understand the case

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22
Q

When will a skeleton argument be needed? what is it?

A

Needed for high court cases

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23
Q

How much notice will a court give someone if they order pre-trial review? Why would they order a pre-trial review?

A

Review ordered if they are not happy with checklist

7 days notice from court

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24
Q

When must a list of any authorities be submitted?

A

By 5pm the day before the hearing

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25
What must the parties do if the parties settle before trial?
Notify listing officer -- failure means that costs penalties iwll be imposed
26
If you need to apply for another expert, what type of application would you make?
interim application
27
What will happen once a notice is served on the other side to admit a particular fact or document?
If party does not admit, and judge decides they should have, there will be costs consequences
28
How should you keep counsel abreast of updates?
Brief to counsel - multi track, they will be involved the whole time, if fast / small, it will be more of a summary
29
How can you secure the attendance of witnesses and experts?
Summons - Form N20
30
Once judgment has been entered, what are the claimant and the defendant now called?
Loser - judgment debtor Winner - judgment creditor
31
When should you consider when D will be able to pay?
Before bringing a case at all
32
What can a creditor make a judgment debtor do?
They can order oral examination of a debtor - attending court to provide information about the judgment debtor's means
33
What is the procedure for the oral examination of a debtor?
* can be made without notice * must contain penal notice * served personally on the person ordered to attend, not less than 14 days before hearing
34
in which court is an attachment of earnings' order enforceable?
County Court
35
Over what threshold must sums be enforced in the High Court?
£5,000 or more
36
Between what threshold can sums be enforced in either court?
Between £600 and £5,000
37
Under which threshold must a sum be enforced in the County Court?
£600
38
What investigations should you conduct at the start of a dispute?
* Conducting a company search * Copies from Land Registry * Searched against other relevant registers * Instructed an enquiry agent to report
39
What is an enquiry agent?
* Private investigators who can get information on companies or individuals * Very expensive * Should instruct a reputable firm
40
What registers should you check to consider enforceability?
* Land Charges Register * Individual Insolvency Register – bankrupt people, Debt relief orders, IVAs in place * Attachment of Earnings Order Index * Register of Judgments, Orders and Fines
41
What is enforcement by taking control of goods?
Enforcement officer can seize a JD’s goods and sell them in satisfaction of debt
42
What is crucial to check in a TCG order?
that JD owns the goods and that there are no 3rd party claims to the goods from anyone else
43
Which goods are exempt from a TCG?
* Tools of JD’s trade which are exempt – only up to a total value of £1,350 * Basic domestic items
44
When can a judgment creditor apply for TCG?
As soon as judgment has been obtained
45
What is the procedure for a TCG enforcement?
JC requests the issue of relevant document and pays relevant fee * High Court – writ of control * County Court – Warrant of control Writ or warrant is addressed to EO Relevant document contains the following: *. Details and amount of debts * Fixed amount for costs of TCG added, including court fee EO can take their own charges out of proceeds of goods sold JC should give EO any avoidable information about JD’s goods
46
What is the process after a writ or warrant?
7 days notice must be given before taking control of goods EO has 12 months from the date of notice to take control of goods
47
What limits are there on an EO's power to enter a premises and take goods?
- Reasonable force can be used - Can’t take before 6am or 9pm - No child / vulnerable person as ONLY person present
48
After EO enters a property what must they do?
Provide a notice for JD giving details of what is going on
49
What alternative option can an EO take instead of securing goods?
EO can enter into a controlled goods agreement
50
What is a charging order? How does it work?
Charge taken over land securing a judgment debt - Remains in place until property is sold by debtor - Debt then paid using sale proceeds - Charge removed as part of process of selling the property - Subject to any pre-existing charges
51
What is the procedure for a charging order?
Interim order, followed by a final order
52
When is a 3rd party debt order used? What is the procedure?
Used if there is a debt due or accruing due to a judgment debtor by a 3rd party in the jurisdiction On application of JC – court can make an order requiring a 3rd party to pay to the JC some or all of a debt owing to JD by 3rd party
53
When an EO sells goods obtained, how should they do this and for what price?
For the best price reasonably obtained Usually a public auction
54
What happens to any surplus funds from the sale of goods?
Paid back to the JD
55
What is the procedure for a 3rd party debt order?
Interim order can be made without notice Effect: prevents the 3rd party making any more payments until a further order Next: on notice hearing where JD and 3rd party can be heard, and court can decide what final order to make
56
What is an attachment of earnings order?
JDs salary will have deductions made from it by their employer
57
Where can an attachment of earnings order be made?
In County Court, for debts above £50
58
What is the procedure for an attachment of earnings application
Application and a reply form served on a debtor who should complete and return order once made served on debtor and JD's employer
59
When can insolvency proceedings be brought against an individual?
Must be over £5,000
60
When can insolvency proceedings be brought against a company?
JD is over £750 - often evidenced by a statutory demand unpaid for 21 days
61
What process should you use to enforce if the JD has moveable assets?
TCG - transfer to High Court if necessary
62
What process should you use to enforce if the JD has debts owed by others?
3rd party debt order
63
What process should you use to enforce if the JD has earnings?
Attachment of earnings - transfer down if needed
64
What process should you use to enforce if the JD's assets are unclear?
Use an order to obtain information Use enquiry agent Do some research yourself / ask the client
65
When will an appeal court allow an appeal from a lower court?
Decision is wrong: - Error of law - Error of fact - Error in exercise of court's discretion Unjust decision: - Serious
66
As a standard practice in a civil appeal will new evidence be heard?
No - will be done based on evidence / representations seen by lower court.
66
What options does a party have regarding when they can appeal?
1) Apply for permission from lower court, at time decision to be appealed is made. Orally, and does not prevent a later application to the appeal court 2) Make the application to the appeal court later. Writing, and usually no hearing
67
If permission is refused on a paper application when the appeal court is the CC / HC, what can be done?
Appellant can request a reconsideration at an oral hearing
68
If permission is refused on a oral application when the appeal court is the CC / HC, what can be done?
Nothing - no further right of appeal
69
How will appeals be considered if COA is appeal court?
papers - unless judge considers that a matter should be dealt with orally
70
What test will the court apply when an applicant first appeals?
- That the appeal would have a real prospect of success OR - There is some other compelling reason why appeal should be heard
71
What are the time limits for applying for permission to appeal?
Appeal must be made within 21 days of the date of the lower court's decision
72
What is the test for a second application for permission to appeal?
- Appeal would have a real prospect of success AND raise an important point of principle or practice - There is some other compelling reason for COA to hear it
73
Does the appeal notice effect a stay of execution on the judgment of the lower court?
No - so often it is necessary to apply for an injunction
74
What orders can an appeal court make?
Affirm, set aside, or vary any order or judgment Refer any claim or issue for determination by lower court Order a new trial or hearing Make orders for the payment of interest Make a costs order
75
If an attachment of earnings order is made and the defendant can no longer afford it as they earn less, what can they do?
Apply to county court to have it varied

Dispute Resolution (11 decks)

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