Dispute Resolution > Trials and Enforcement > Flashcards

Trials and Enforcement Flashcards

(96 cards)

Study These Flashcards
1
Q

Defence available for a consent order if fresh proceedings are later brought regarding matters in the agreement

A

defence of estoppel

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

When can consent orders be used?

A

to settle an entire claim AND used for an interim application

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

A Tomlin Order

A

type of consent order

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

When would you use a Tomlin Order rather than a standard consent order?

A

when the parties wish for the key settlement terms to be confidential; and/or
when the agreed settlement terms go beyond those that the court could generally order as part of the proceedings.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Which part of a Tomlin Order is confidential?

A

Part 2 - the Schedule

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Which directions must be included in Part 1 of a Tomlin Order? (ie cannot be confidential)

A

Any direction for payment of money out of court or the payment and/or assessment of costs must be contained in Part 1

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Is court approval required for consent orders and Tomlin orders?

A

Yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What happens if an application for a consent / Tomlin Order is made during a stay of the proceedings?

A

it will also be treated as an application to have the stay lifted

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is the max. extension a claimant can request for exchange of witness statements?

A

the parties can usually agree an extension of up to 28 days without the need to apply to court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

if there is any doubt about whether a witness will attend, you should obtain a

A

witness summons (Form N20), which should be issued at least 7 days before the date on which the witness is required to attend court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

for service to be effective and the witness summons to be valid, at the time of service of the witness summons, the witness must be offered or paid by the party who wishes to call them:

A

(a) a sum reasonably sufficient to cover their expenses in travelling to the court and returning to their home or place of work; and

(b) a sum by way of compensation for loss of time as specified in PD 34A, equivalent to the amount the witness would lose by way of earnings or benefits in giving evidence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

consequences for the witness for failure to appear

A

(a) may be fined or
(b) could be imprisoned for contempt in High Court proceedings.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

When would the court set aside a witness summons?

A

where the request for evidence is speculative, oppressive, or where the witness would not have anything relevant to add.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Pre-trial checklist / listing questionnaire

A

Form N170

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

the pre-trial checklist must be filed at court no later than

A

8 weeks before the trial date

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Review hearings

A

The judge will review the pre-trial checklists.

In the fast track, this is a listing hearing.

In the intermediate and multi-track, it is a pre-trial review.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

How are consent orders used for interim applications?

A

It is filed at court to demonstrate that the parties have agreed to something eg an extension. Court is not obliged to give approval.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Pre-trial checklist form

A

Form N170

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Which track does not require a pre-trial checklist?

A

small claims track

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

When is a pre-trial checklist sent to each party?

A

at least 14 days before the due date for filing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Due date for filing a pre-trial checklist

A

min. 8 weeks prior to the trial date or the start of the trial period

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Purpose of the pre-trial review

A

check that the parties have complied with all previous orders and directions, and to give directions for conduct of the trial

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Who is responsible for filing the trial bundle at court?

A

the claimant (unless they are unrepresented, in which case the court may direct another party prepare and produce it)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

When must trial bundles be filed at court?

A

between 3 - 7 clear days before the trial starts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
No. of copies of trial bundle required
copy at court, one for each party, 1 copy for witnesses
26
Counting time for trial bundles
Clear days - exclude day of trial and date that counting begins less than 5 days - exclude weekends
27
Reading lists for trial bundles
Necessary for High Court cases in the Chancery Division and the KBD set out an estimate of the reading time the judge is likely to require should be signed by all advocates
28
Contents of a skeleton argument
- review the party's submissions of fact with reference to evidence - set out any law to be relied on - identify any key docs that the trial judge should read before trial
29
The usual direction is for the parties to file with the court and exchange skeleton arguments by email at least
2 or 3 days before trial
30
Deadline of submitting a list of authorities for High Court case
5pm the day before the hearing
31
If the case does settle between the listing stage and trial, what should the parties do?
notify the listing officer for the trial court immediately to enable the court to try and allocate the time to other cases (or costs penalties could apply)
32
purpose of a notice to admit facts
to formally ask the other party to admit a particular factual point that is in issue in the case
33
Questions in re-examination
Non-leading questions only
34
Split trial
the court decides to firstly hold a trial to decide who is to blame and then, assuming the defendant is found liable, some time later there will be a disposal hearing: a further trial or hearing to assess the level of damages.
35
When will the court usually allow a split trial?
where the evidence on liability is different to the evidence on quantum, and it will further the overriding objective to hold two separate hearings
36
'Drawing up' an order
setting the order out in the formal document to be sealed by the court
37
If an order is to be drawn up by a party, the party drawing the order up is required to file it
no later than 7 days after becoming responsible for it
38
When does interest start to run on the judgment debt?
from the date on which the judgment is given
39
Rate of interest on judgment debts is set at
8% per annum
40
time limit for complying with a judgment or order for the payment of an amount of money
14 days
41
why should you pay a judgment ASAP?
because interest accumulates from date of judgment
42
When may the courts exercise their discretion to allow a stay of execution of the judgment or order?
on the grounds of matters which have occurred since the date of judgment eg a pending appeal against the judgment
43
What does the Debt Respite Scheme do?
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
44
What types of judgment are not included in the Debt Respite Scheme?
damages for death or personal injury caused to someone else
45
enforcement proceedings
the steps taken post-judgment by the successful party to obtain payment from the unsuccessful party
46
2 main ways to find out more info about the judgment debtor's assets and financial circumstances
(a) instruct an enquiry agent; or (b) apply to the court for an order to obtain information from the debtor.
47
An order to obtain information
A judgment creditor may apply for an order requiring a judgment debtor to attend court to be questioned under oath about their finances
48
Procedure for an order to obtain information
(a) judgment creditor files an application for info hearing using Form N316 at court (b) the order is served on the debtor who can, within 7 days, request payment of reasonable travel expenses (c) hearing normally at local County Court hearing centre where standard qs asked
49
What happens if the debtor fails to attend court for an order to obtain information?
the judge may make a committal order against them, which is usually suspended provided the debtor complies with the order
50
specific disclosure and/or a witness summons are only appropriate to enforce a judgment at what stage?
while court proceedings are ongoing
51
application form to question an individual judgment debtor
Form N316
52
application form to question an officer of a company or other corporation
Form N316A
53
An order for a judgment debtor to attend court for a hearing must be served
personally on the person ordered to attend court not less than 14 days before the hearing
54
Main methods of enforcement of money judgments
- Taking control of goods - Charging orders - Third party debt orders - Attachment of earnings orders - Insolvency proceedings
55
Impact of receiving costs/damages if the other party is a legally aided opponent
your client will not recover its costs and may not recover damages
56
method of preventing an opponent from dissipating assets
freezing order
57
Taking Control of Goods Order (Part 83)
allows an enforcement officer (‘EO’) to seize a judgment debtor’s goods and sell them by public auction to satisfy the judgment debt and expenses
58
Can enforcement officers force entry into a debtor’s home?
No
59
Can enforcement officers force entry into a debtor’s business premises?
They can use reasonable force to enter business premises if they believe the debtor's goods are inside
60
Items exempted from TCG order
- tools, books, computers, vehicles etc used for the judgment debtor’s trade or study up to an aggregate value of £1,350; - basic domestic items, such as clothing, bedding, furniture and essential household items; - goods that belong solely to a spouse or other family member - items which are leased, rented etc.
61
Thresholds for selecting County Court or High Court for TCG order
up to £600 - County £600 - £5000 - County or High Court More than £5000 - High Court
62
Document for TCG in High Court
Writ of control
63
TCG enforcement procedure in the High Court
(a) judgment creditor delivers a request and 2 copies of a writ of control to the court office with the judgment (b) court seals the writ and returns one copy to the creditor (c) creditor forward this to the High Court Enforcement Officer for the county where the debtor resides or conducts business, for the writ to be executed
64
TCG enforcement procedure in the County Court
(a) The creditor files the form of request for a warrant of control at the County Court hearing centre that serves the address where the goods are to be seized; (b) The warrant is executed by the enforcement officer for the district where the debtor resides or carries on business.
65
Document for TCG in County Court
Warrant of control
66
How long does the EO have from the date of giving notice to take control of the judgment debtor’s goods?
12 months
67
Restrictions on EO entering premises to seize goods
the EO must generally not take control of goods before 6am or after 9pm on any day, nor at premises when a child or vulnerable person is the only person present.
68
Benefit for a judgment debtor of entering a Controlled Goods Agreement with the Enforcement Officer
Gives them a final chance - 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
69
Disadvantages of a Taking Control of Goods order
- logistical difficulties - high costs - relatively low resale value of goods - judgment creditor does not always obtain all the monies due to them
70
When is a Third Party Debt Order appropriate?
when there is a ‘debt due or accruing due’ to a judgment debtor by a third party within the jurisdiction eg money in a bank account, trading debts
71
Third party debt order procedure
(a) creditor applies to court without notice to the debtor, providing details eg name and address of the bank where the money is held (b) judge makes an interim order eg freezing order. Hearing will be listed no less than 28 days later. (c) court will consider any objections. Otherwise, order made final. Third party must pay money to creditor.
72
Disadvantages of a third party debt order
- cannot be claimed over a joint bank account; - cannot be claimed over an empty bank account (eg if funds are moved).
73
Main benefits of a third party debt order
Element of surprise
74
Charging order
a form of charge taken over land or securities (eg stocks and shares) which secures a judgment debt
75
Where the application for a charging order is made in the County Court, it must be submitted to the
Civil National Business Centre
76
Application notice for a charging order on securities
Form N380
77
3-stage procedure for charging orders
(1) interim charging order; (2) final charging order (3) order for sale
78
Advantages of a charging order
- useful where the debtor doesn't have liquid assets; - secures the judgment debt; - may encourage the debtor to make efforts towards settling the debt, particularly as interest will continue to accrue.
79
Downside of a charging order
- may be existing mortgages with priority - the creditor may need to wait for a considerable time to bring an order for sale on the charged land/securities so that the value goes up to meet the judgment debt
80
Attachment of earnings order (Form N337)
compels the debtor’s employer to make regular deductions from the debtor’s earnings and pay them into court
81
Attachment of earnings orders only available in which court?
County Court
82
How to apply for an Attachment of Earnings order?
- creditor applies to County Court, Civil National Business Centre by filing Form N337, which certifies the amount of the judgment that is outstanding, and pays the applicable fee; - court officer makes an attachment of earnings order and informs debtor of the application and requires them to pay or file a statement of means; - The order will be sent to the parties and to the debtor’s employer, with instructions to deduct the amount ordered from the debtor’s pay and forward it to the court; - If either party objects to the order that has been made, they can apply for the matter to be reconsidered by the district judge at a hearing.
83
When is an attachment of earnings order most relevant?
where a debtor does not have substantial assets but does earn a salary from employment (the earnings are deducted and passed on to the judgment debtor)
84
Advantages of an attachment of earnings order
- effective if they remain in their course of employment - secures the judgment debt
85
Disadvantages of an attachment of earnings order
- if the debtor loses their job, the payments will cease and if they move job, the creditor will have to repeat the process - the court may order a very low-value instalment so the judgment will take a considerable time to satisfy.
86
A petition for bankruptcy against an individual can be issued when the judgement debt against them is more than
£5,000
87
A petition to wind up a company can be issued when the judgment debt against it is more than
£750
88
How is discontinuance achieved?
Filing a notice at court and serving it on all other parties
89
Who normally prepares the trial bundle?
claimant
90
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
91
When is a summary assessment of costs more likely to be ordered?
in a fast track case or at the conclusion of a hearing lasting not more than one day
92
Debt Sum up to £600
must use County Court, warrant of control
93
Debt Sum £600-£5000
can use either High Court or County Court
94
Debt Sum £5000+
must use High Court, writ of control
95
Usual length of an intermediate track trial
3 days
96
How to cross-examine a witness
- highlight inconsistencies, weaknesses and gaps in their evidence; - put their party's case to the witness to challenge their evidence - ask leading and closed questions
Dispute Resolution
flashcards
Decks in class (19)
# Cards
Brainscape helps you reach your goals faster, through stronger study habits.
© 2026 Bold Learning Solutions. Terms and Conditions