Civil Litigation

Appeals and Enforcement – Civil Litigation – SQE1 & SQE2 Exam

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Appeals
Grounds and form of appeals
• No automatic right of appeal –appeal against decision by lower court will only be
allowed by appeal court where lower court’s decision was wrong / unjust because of
serious procedural or other irregularity (CPR 52.21(3))
• Form = review of lower court’s decision based on evidence and representations
heard by lower court; only re-hearing where:
o PD makes such a provision
o Court considers it to be in the interests of justice
• No fresh evidence unless ordered by court (CPR 52.21(2)), where:
o Could not have been obtained with reasonable diligence for use in lower
court;
o Would probably have an important influence on result; and
o Is apparently credible
o Accords with overriding objective
• Appeal courts are reluctant to interfere with the lower court judge’s exercise of
discretion, unless misunderstanding of:
o Law
o Evidence
o Facts
Who hears the appeal?
52APD 3.5:
Appeal from… Appeal to…
County Court District Judge County Court Circuit Judge
County Court District Judge dealing with
non-insolvency Companies Act proceedings
High Court
County Court Circuit Judge High Court
High Court Master High Court Judge
High Court Judge Court of Appeal
• CPR 52.23 – court lower than CoA may transfer first appeal directly to CoA where:
o Appeal raises important point of principle / practice; or
o Some other compelling reason for CoA to hear
© Liam Porritt 2020 2
Permission
• General rule – permission is required for all appeals (CPR 52.3)
• However, if 1 / 3 exceptions applies, no permission required + appellant may appeal
as of right (CPR 52.3(1)) = appeal against:
o Committal order
o Refusal to grant habeas corpus
o Secure accommodation order
Applying for permission
• Application for permission may be made orally to lower court at time when decision
to be appealed is made (CPR 52.3(2))
• Alternatively (CPR 52.3(2)(b)) or where permission refused by lower court (CPR
52.3(3)), application made to appeal court in an appellant’s notice (CPR 52.12(1))
o Appellant’s notice must contain grounds for appeal + why CPR 52.21(3)
(procedural / other irregularity) applies (CPR 52B PD 4.2(d))
• Time Limits:
o Judgments take effect from date given / as specified by court (CPR 40.7(1))
o Apart from appeals to SC, have 21 days from original decision (regardless of
when judgment / order formally drawn up) to appeal (CPR 52.12(2)(b))
§ Unless court orders differently (CPR 52.12(2)(a)); or
§ Party applies to lower court for extension of time (CPR 52B PD 3)
o Appellant’s notice must be served on each respondent ASAP + not later than
7 days after filing (CPR 52.12(3))
• Where appeal court =
o CoA, application decided on papers alone (CPR 52.5(1)), unless judge
considers that the matter cannot be fairly determined without an oral
hearing (CPR 52.5(2))
§ Oral hearing will be listed within 14 days where required
o County Court / High Court, if appeal court refuses paper application,
appellant may requires (within 7 days after service of notice refusing
permission) that decision be reconsidered at oral hearing (CPR 52.4)
Test for granting permission
• Permission only granted where court considers:
o Appeal has real prospect of success; or
§ Similar to test under CPR 24.2 for summary judgment + Swain v
Hillman
o Other compelling reason (CPR 52.6)
• Permission to appeal may limit issues to be heard + be made subject to conditions
(CPR 52.6(2))
© Liam Porritt 2020 3
Respondent’s position
• Respondent’s notice – must be filed by R who (CPR 52.13(2)):
o Is seeking permission to appeal from the appeal court; or
o Wishes to ask appeal court to uphold order of lower court for reasons
different from / additional to those given by lower court
Types of respondent
1. R happy with decision of lower court + wishes judgment to be upheld on appeal for
reasons given by judge below => no need for respondent’s notice
2. R who wishes to uphold decision of court below but for different / additional reasons
=> respondent’s notice (CPR 52C PD 8(3)
3. R who wishes to ask appeal court to vary the order of the lower court => crossappeal, and therefore permission to appeal sought on same basis as for appellant
(CPR 52C PD 8(2))
Time limits
• Respondent’s notice filed within:
o Such period as directed by lower court; or
o Within 14 days after date laid down by CPR 52.13(5), which is date on which
R became aware of appeal (CPR 52.13(5))
Effect of appeal on judgment of lower court
• Appeal only operates as stay of order/ decision if (CPR 52.16):
o Appeal court / lower court orders so; or
o Appel from Immigration Upper Tribunal
Appeal hearings
• Composition:
o CC Circuit Judges + HC Judges hear appeals alone
o CoA – 2 LJs on interim appeals; 3 on final appeals
o SC – 5-member court
• Powers of appeal court = all powers of lower court (CPR 52.20(1)) + particular
powers under CPR 52.20(2):
o Affirm, set aside or vary judgment;
o Refer claim for determination by lower court;
o Order new trial;
o Make order for interest
o Make order for costs
• Second appeals to CoA; third to SC; then to ECHR
© Liam Porritt 2020 4
Enforcement
• ‘Judgment creditor’ = winning claimant (CPR 70.1(2)(a))
• ‘Judgment debtor’ = losing defendant (CPR 70.1(2)(b))
• Court does not automatically take enforcement action against JD; JC must take steps
to enforce once the debt is due (i.e. time for payment specified in judgment / CPR
40.11 (being 14 days) has passed)
Investigating debtor’s means
• Investigations at outset of matter to ascertain if D likely to be able to meet any claim
o Company search; official copies; other registers; enquiry agent instructed
Order to obtain information from judgment debtor (CPR 71) – UNCERTAIN ASSETS
• JC may apply for order requiring JD /officer of JD to attend court to provide
information about JD’s means / related matters (CPR 71.2(1))
o No need for notice to JD (CPR 71.2(2))
• If made, order will include a penal notice stating JD will be in contempt of court if fail
to comply (CPR 71.2(7))
• Order to attend court served on person ordered to attend not less than 14 days
before hearing (CPR 71.3(1))
• JD must attend court, provide documents and answer questions under oath (CPR
71.2(6))
© Liam Porritt 2020 5
Means of enforcement
Taking Control of Goods (TCG) – MOVEABLE ASSETS
• Enforcement officer (EO) may seize JD’s goods + sell them to satisfy the debt +
expenses (costs of TCG inc. court fee + EO’s charges)
o Provided no third-party claims to goods, e.g. co-owners + higher ranking
creditors
o + Not exempt goods:
§ Tools of JD’s trade to an aggregate value of £1,350
§ Basic domestic items (clothing, bedding, furniture, essential
household items)
• Which court to apply to for TCG? – Outstanding debt sum:
o ≤ £600 = CC
o £600 < claim ≤ £5,000 = HC or CC
o < £5,000 = HC
• JC commences TCG by requesting issue of writ of control (HC) or warrant of control
(CC) + paying applicable fee
• Document addressed to EO + entitles EO to seize + sell JD’s goods
3-Stage process
Following writ / warrant of control delivered to EO:
1. Advanced notice given to JD at least 7 clear days before taking control of any goods
+ goods must be seized within 12 months from giving notice
2. EO may use reasonable force (not against persons) to enter premises if necessary,
but only:
a. Between 6am and 9pm AND
b. Not where only person present is a child / vulnerable person
Alternatively to taking the goods here, EO may enter into controlled goods
agreement with JD, allowing JD to retain possession, but EO having control pending
payment of debt
3. Notice after entry + inventory of goods taken
4. Goods sold for best price reasonably obtained, usually by public auction
© Liam Porritt 2020 6
Third Party Debt Orders (CPR 72 + PD) – DEBTS OWED BY OTHERS
• Where debt due or accruing due to JD by third party within jurisdiction (e.g. bank
account, trade debts owing) => JC may apply for court to make order requiring third
party to pay JC debt + costs of application (CPR 72.2(1))
Process
1. Interim order made without notice to JD, served on third party preventing making
payment to JD (CPR 72.4)
2. Interim order served on JD
3. On-notice hearing where JD + third party heard = court decides whether to make
final order requiring third party to pay JC
Charging orders on land / certain securities (CPR 73 + PD) – REAL PROPERTY
• Charging Order = charge over land / assets securing judgment debt
o Similar procedure as for third party debt order (interim + final)
• Following CO, subsequent application made for an Order for Sale
Attachment of earnings (CPR 89) – EARNINGS
• Only available in CC
o If JC wants AoE, judgment must be transferred to CC
• Order = JD’s salary has deductions made from it by JD’s employer, paid to JC
Process
1. JC applies by filing application in standard form
2. Application + reply form served on JD who should complete and return reply form to
court
3. Court may make order (no attendance) attaching a proportion of JD’s earnings,
served on JD + JD’s employer
4. JD’s employer makes deductions, paid to court + transmitted onward to JC
Proceedings for insolvency
1. (Statutory Demand (optional) – if debt remains unpaid for 21 days after service of
demand, debtor at risk of court presuming unable to pay + therefore insolvent)
2. Petition for bankruptcy (individual) / winding up (company) can be issued and
presented to the JD’s local court where:
o Debt > £5,000 for individual
o Debt > £750 for company
3. Petition served on JD + hearing fixed
4. Hearing + potential order
• Must consider ranking of creditors, as will rank below preferred creditors
© Liam Porritt 2020 7
Reciprocal enforcement of judgments between countries
• Where assets abroad, but judgment in English court = enforce judgment in foreign
jurisdiction
• Where judgment elsewhere, but assets in England = enforce judgment in England
Procedure
• Generally, where arrangements with another jurisdiction are in place, judgments of
one country can be registered in another country + are treated as if they were
judgments of that country for enforcement purposes
• Follow CPR 74 for relevant jurisdiction
Common law
• Where no regime, common law enforcement applies = much more difficult (USA +
Hong Kong)
o Where enforcing English judgement abroad, enforcement governed by
common law of country in which seeking enforcement
o Where enforcing a foreign judgment in England & Wales, must obtain
judgment from English court => provided no appeal in foreign court, foreign
judgment is treated as debt, claim is made for non-payment of debt +
summary judgment applied for under CPR 24

 

 

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