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8255 results in Intersentia

Page 391 of 413

  • Chapter 20 - Enforcement under the New York Convention (1958)

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 377-394

  • Summary

    THE SCHEME OF THE CONVENTION (1958)

    The arbitral tribunal cannot administer coercive or physical assistance in securing enforcement of its awards. Instead the successful party must invoke the enforcement powers of the relevant judicial system, whether this be within the jurisdiction where the arbitration had its seat or within a foreign jurisdiction.

    National systems provide for enforcement of domestic arbitration awards, but these details are too large and fragmentary to justify separate discussion here. And so attention is confined here to judicial recognition and enforcement of foreign arbitral awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).

    Foreign awards are enforceable in over 140 different countries in accordance with the New York Convention (1958). This instrument is the greatest success of modern international commercial arbitration: ‘It has made the greatest single contribution to the internationalisation of international commercial arbitration.’

    The grounds (which are permissive – ‘may’ – so that the enforcement court is not obliged to deny recognition or refuse enforcement) for the refusal of recognition and enforcement of an arbitration award under Article V are as follows:

    (1) Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:

    (a) The parties to the arbitration agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made;

    (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present its case;

    (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced;

  • Chapter 21 - Consumer Disputes: Extra-Judicial Resolution

  • from PART III - CONSUMER ADR
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 397-402

  • Summary

    European Union authorities are examining the possibility of introducing pan-European measures to regulate the array of private and public extra-curial techniques used in the field of consumer disputes. In this short account it will be sufficient to sketch some of these developments and to refer to further literature.

    Government has an interest in fostering these systems because these cases are diverted from the ordinary courts.

    Some traders have their own ODR (online dispute resolution) systems, such as Amazon's in-house dispute resolution.

    Sometimes there is a trade sector, that is, an industry-wide, privatised funding of independent dispute resolution boards.

    Within the UK there are statutory schemes of independent dispute resolution, for example, the Pensions Ombudsman and the Financial Ombudsman (which is binding on the financial bodies).

    In the Netherlands there is a sectoral structure within arbitral proceedings, which are all run by a single private trust.

    Although many of these systems are concerned with contractual complaints, there is scope to expand into the field of tort complaints and even public issues.

    This interesting development involves expansion of (optional) consumer arbitration. This form of arbitration is less formal than traditional arbitration. This type of mechanism overcomes cross-border problems. It can produce cheap and speedy results and relief. Another advantage is that the decision-maker can be expert, the procedure can be stream-lined, documentary (or indeed on-line), and almost self-executing (indeed some trade associations might be the ultimate guarantors of such ‘awards’), without costs being incurred by the consumer, with a mix of mediation and decision-making.

    Related cases (systemic default) can be processed through these systems by collective redress. Furthermore, these systems are good at collecting statistics and making these available to the public. Adverse publicity can affect the trading behaviour of the respondent(s).

    But a disadvantage is that national systems of online dispute resolution are reluctant to decide points of law. It might be necessary, therefore, to have a referral system so that common and recurrent issues of legal uncertainty can be adjudicated by a national court.

    What is the relationship between the courts and consumer dispute resolution? In Sweden there is now very little consumer litigation in the ordinary courts because the privatised system is effective.

  • Chapter 16 - Finality in Court Proceedings

  • from PART III - END-GAME: TRIAL, APPEAL, FINALITY AND ENFORCEMENT
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 461-494

  • Summary

    INTRODUCTION

    The main subject of the present chapter is the bindingness of decisions inter partes on matters decided by a court (or an arbitral tribunal: on the latter, 17.01 ff, vol II). This is known as estoppel per rem judicatam, or res judicata. This form of estoppel bars successive litigation of the same claim or issues between the same parties. It concerns ‘claim or issue preclusion’. The underpinning maxims are: nemo debet bis vexari pro una et eadem causa and interest res publicae ut fi nis litium sit (‘no one should be disturbed twice in the same matter’ and ‘it is in the public interest that lawsuits should have an end’). The res judicata doctrine has various manifestations: cause of action estoppel, issue estoppel, and the doctrine of merger (the need to bring all claims for compensation, arising from the same event, in a single action). Furthermore, the desire to achieve closure in civil proceedings inspired the English courts to recognise an extended principle: the rule in Henderson v. Henderson (1843) requires litigants to bring to the original action all reasonably convenient issues, and not to attempt in successive litigation to raise points which might have been conveniently examined in the earlier case. (In fact ‘estoppel’ is a general doctrine, although there are many variants of estoppel in English law. It prevents a party from acting inconsistently with a representation, whether by words or conduct. This concept has been recognised by the UNIDROIT Principles of International Contracts.)

    RECOGNITION OF FINALITY AS A HALLOWED PROCEDURAL PRINCIPLE

    English trial judges (whether sitting in the High Court or a lower first instance court) will have attended meticulously to the rival submissions and evidence and reached a careful decision. Against this background it is not surprising that the courts have emphasised the principle of finality. Thus in Smith v. Brough (2005) Brooke LJ noted that: ‘it is a fundamental principle of our common law that the outcome of litigation should be final.’

  • Chapter 1 - Mediation

  • from PART I - MEDIATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 3-64

  • Summary

    MEDIATION AND OTHER FORMS OF ALTERNATIVE DISPUTE RESOLUTION

    The three main ‘alternatives’ to civil litigation before the English courts are: (i) party-to-party negotiation leading to settlement: this is the most common way in which a dispute or claim is terminated; (ii) mediation or conciliation: these will be discussed in this chapter; (iii) arbitration (see next chapter for this). Arbitration tends to be a rather formal style of proceeding; commercial arbitration conducted in England can replicate many aspects of High Court commercial litigation, although this tendency is regrettable, has been lamented, and should be resisted.

    As for (i), party-to-party negotiation, leading to settlement, a few remarks will suffice. Settlement is by far the most common way in which civil disputes truly contested on the merits (that is, claims other than straightforward debt enforcement actions, where there is no real defence) are concluded in England. A very high percentage of civil actions do not proceed to trial. Instead most English actions culminate not in judgment on the merits, following examination of witnesses and documents at trial, or consideration of the merits during a summary proceeding (10.79 ff, vol I), but in an agreement of compromise or settlement between the parties. The decline of civil trials in the USA has also attracted comment.

    MAIN TYPES OF INTERVENTION BY A NEUTRAL

    A third party neutral can intervene in various ways, as a messenger or go-between, as a more active facilitative mediator, as a prescriptive or ‘evaluative’ mediator, or as a decision-maker (whether as a judge or arbitrator). In greater detail, these roles involve the following:

  • (i) The neutral might act minimally as a shuttle-cock messenger: the neutral will then be a ‘go-between’, passing messages between parties who cannot any longer communicate directly with each other.

  • (ii) Or the neutral might intervene more actively as a non-evaluative and facilitative mediator, for the purpose of brokering a settlement, without commenting on the merits of the parties’ respective positions; getting the parties, especially their leading figures, to sit together and articulate their sides of the disagreement might be a major step towards establishing the platform for an eventual settlement.

  • Chapter 13 - Experts

  • from PART II - COMMENCEMENT OF COURT PROCEEDINGS AND PREPARATION FOR TRIAL
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 349-376

  • Summary

    INTRODUCTION

    Experts are needed in the civil process because ‘no judge is omniscient’ and ‘we cannot demand of the judges that they have knowledge of every branch of science, of every art and of the mysteries of every profession.’ This chapter concerns expert witnesses in English court proceedings (and apart from court assessors) rather than background expert advisors to litigants. Advisory consultation with experts is not covered by the CPR regime, that is, where a litigant obtains an opinion from an expert, but that opinion is not for use as evidence in the case (see further below, 13.36). Nor does the CPR system govern experts submitting opinions before, or reporting to, arbitral tribunals (14.32, vol II). Public funding of expert reports in care proceedings was discussed by Sir Nicholas Wall, P, in A Local Authority v. S (2012), where he noted problems posed by budgetary constraints.

    The CPR aims to curb the perceived excesses of the party-appointed ‘battle of experts’. The three problems experienced before the CPR system were: first, the tendency for expert witnesses hired by a litigant to lose objectivity and tailor their report to suit that party's case; secondly, the need to control the number of experts involved in a particular case, especially with a view to achieving proportionality between their use and the case's value or importance; thirdly, the need to promote ‘equality of arms’ between rich and poor parties. Under the CPR system the main rule is that no expert evidence can be presented in a case unless the court has granted permission. This control is a facet of the court's case management powers.

    Under the CPR, there are three ways in which the ordinary civil courts can receive expert opinion: by a ‘single, joint expert’, party-appointed experts, and court assessors. These will be introduced in turn in the ensuing discussion.

    Lord Woolf in the Interim Report (1995) had contemplated a much larger role for expert court-assistants, to be appointed by the court to act as independent experts in a particular case. However, this was resisted on the ground that in the larger cases there should be debate and the parties should retain control of the adversarial debate.

  • Chapter 30 - European Influences upon English Civil Justice

  • from PART VII - THE EUROPEAN CONTEXT
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 807-818

  • Summary

    INTRODUCTION

    In this chapter we will consider connections between English civil procedure and Europe. The greatest impact of European law has been the decision (ostensibly compelled by European human rights jurisprudence) to create a new United Kingdom Supreme Court, in order to secure complete separation of functions between the legislature and judicial system, and to ensure that the Lord Chancellor (that is, the Minister of Justice) can no longer sit as a judge. All of this is a reminder that, at any rate juridically, England ‘is no longer an island.’

    ARTICLE 6(1) OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

    The Human Rights Act 1998, which took effect in October 2000, rendered the European Convention on Human Rights directly applicable in English courts. Article 6(1) of the Convention states:

    Right to a Fair Trial: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

    That important codification of fundamental principle consists of the following elements: the rights to:

    (i) ‘a fair hearing’: this is a wide concept embracing:

  • (a) the right to be present at an adversarial hearing;

  • (b) the right to equality of arms;

  • (c) the right to fair presentation of the evidence;

  • (d) the right to cross examine opponents’ witnesses;

  • (e) the right to a reasoned judgment;

    • (ii) ‘a public hearing’: including the right to a public pronouncement of judgment;

    (iii) ‘a hearing within a reasonable time’; and

    (iv) ‘a hearing before an independent and impartial tribunal established by law’ (on independence, 26.01 ff ; on impartiality, 26.19 ff).

    ‘ACCESS TO COURT’ PRINCIPLE

    ‘The European Court of Human Rights in Golder v. UK (1975) divined an implicit fundamental right of ‘access to court’. Lord Bingham in Brown v. Stott (2001) explained:

    ‘Article 6(1) contains no express right of access to justice, but in Golder v. U.K. (1975) the European Court of Human Rights said that it was “inconceivable” that this provision should give detailed procedural guarantees without protecting access to justice. The court in the Golder case conceded that this implied right was not absolute and so admitted limitations.’

  • Chapter 11 - Disclosure

  • from PART II - COMMENCEMENT OF COURT PROCEEDINGS AND PREPARATION FOR TRIAL
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 261-286

  • Summary

    INTRODUCTION

    This chapter concerns two topics: first, the system of documentary disclosure; secondly, the main ‘privileged’ exceptions to the party's obligation to disclose relevant documents, legal advice and litigation privileges.

    ‘Disclosure’ serves four main functions: (i) it can achieve equality of access to information; (ii) it can facilitate settlement of disputes; (iii) it avoids so-called ‘trial by ambush’, that is, the situation when a party is unable to respond properly to a surprise revelation at the final hearing; and (iv) it assists the court in reaching accurate determinations of fact when entering judgment on the merits.

    PRELIMINARY CONSIDERATION AFFECTING PRE-ACTION AND NON-PARTY DISCLOSURE

    Pre-action disclosure can encourage and enhance settlement, and it can reduce litigation expenses by advancing the stage at which disputants focus upon the essential matters in dispute. The American Law Institute/UNIDROIT Principles state that potential parties, litigants, and the court should each enjoy appropriate ‘access to information’. However, as a matter of principle, there are three counter-constraints: (i) the problem of ‘fishing’, that is, an applicant's ‘roving’ request for evidence to make out a contemplated claim which is wholly speculative; (ii) non-parties’ reasonable expectations in maintaining confidentiality and privacy (whether in respect of their own private information, or to satisfy duties of confidentiality owed to fourth parties); (iii) the danger that judicially administered orders for pre-action disclosure can increase the expense of resolving disputes.

    PRE-ACTION PROTOCOLS

    As mentioned at 4.03 ff, the CPR (1998) system introduced a set of ‘preaction protocols’ which prescribe ‘obligations’ which the prospective parties and their legal representatives must satisfy before commencing formal proceedings. Pre-action protocols are intended to promote efficient exchange of information between the prospective parties, including pre-action disclosure of ‘essential’ documents held by each side. All such disclosure is subject to the restriction that the material can only be used for the purpose of the immediate prospective proceedings.

    PRE-ACTION JUDICIAL ORDERS FOR DISCLOSURE

    CPR 31.166 contains a general power for the court to make a pre-action documentary disclosure order against any type of prospective defendant.

    Before this new rule, statute had confined the scope for pre-action documentary disclosure to proceedings for personal injury and death.

  • Chapter 21 - Protective Relief

  • from PART V - SPECIAL PROCEEDINGS
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 587-618

  • Summary

    INTRODUCTION

    Protective relief concerns judicial orders granted for the purpose of safeguarding the claimant's interests. Such relief takes two main forms: (i) orders for the freezing of the defendant's assets (freezing injunctions, formerly Mareva injunctions); and (ii) orders for the seizure and preservation of evidence (civil search orders, formerly Anton Piller orders). A minor form is the seizure of passports by civil order (21.71 to 21.72).

    Injunctions in these procedural contexts are intended to ensure that attempts to vindicate substantive justice are not thwarted by cynical obstructive tactics – most commonly dissipating assets, destroying evidence, or personally absconding from the jurisdiction.

    Both freezing relief and civil search orders are more commonly applied before commencement of the main proceedings, and they are nearly always issued ‘without notice’ to the respondent (to use the former terminology, they are awarded ex parte).

    The foundation for these orders is the general statutory power to issue injunctions, that is, orders backed by powerful threats. This general power has been a fertile source of judicial creativity. This generic remedy has been adopted to counter many types of misconduct, including wrongs threatening to sap or frustrate the civil process.

    FREEZING RELIEF

    NATURE OF FREEZING INJUNCTIONS

    This is an in personam order (an order addressed personally to the respondent) requiring the respondent to refrain from dealing with his assets.

    This relief does not give the applicant any proprietary interest in the defendant's assets. The in personam operation of freezing relief has been noted in numerous cases. The Court of Appeal in Kastner v. Jason (2004) noted this facet of freezing relief, in the context of an arbitration (the court held that, consistent with the operation of freezing relief in court proceedings, an arbitral tribunal could not be regarded as having created a proprietary charge or lien or other proprietary right in respect of assets covered by an anti-dissipation order). It followed that the creditor could not register an effective caution against land which was the subject of the arbitral tribunal's anti-alienation or anti-dissipation order.

    The rationale for this English approach is that the creditor should not be entitled to gain priority in the pursuit of the debtor's assets.

  • Chapter 17 - Arbitration Awards: Issues of Finality and Res Judicata

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 319-330

  • Summary

    ENGLISH PRACTICE

    In Nomihold Securities Inc v. Mobile Telesystems Finance SA (2012) Andrew Smith J held that an anti-suit injunction (10.23 ff) should be granted to prevent a party from pursuing a second arbitration designed to undermine and contradict the award in an earlier arbitration between the same parties. The judge held:

    ‘It is a breach of an arbitration agreement to bring proceedings to make an unlawful attempt to invalidate the award or to make a collateral attack on a binding judgment or award of a properly constituted tribunal.’

    This decision is sound because the re-litigation would run contrary to the parties’ implied undertaking to adhere to the result of the arbitration in the first reference. Andrew Smith J noted Lord Hobhouse's statement in Associated Electric & Gas Insurance Services Ltd v. European Reinsurance Co of Zurich (2003: see also on this case 18.11 to 18.13): ‘It is an implied term of an arbitration agreement that the parties agree to perform the award’.

    The Privy Council in Associated Electric & Gas Insurance Services Ltd v. European Reinsurance Co of Zurich (2003) held that issue estoppel can arise in arbitration, and this will be binding on a second arbitration panel seised with a matter on a related topic between the same parties. There had been earlier cases on issue estoppel in arbitration proceedings (see also 16.27, vol I). It should also be noted that issue estoppel is not quite as exacting as cause of action estoppel: unlike cause of action estoppel, issue estoppel can be relaxed in either of these situations: (i) there has been a retrospective change in the law which renders the point covered by issue estoppel ‘plainly’ wrong; or (ii) new evidence has emerged which ‘entirely changes the aspect of the case’, provided that, even if he had displayed ‘reasonable diligence’, the relevant party could not have discovered this evidence at the time of the earlier litigation (see also 15.73, vol I).

    In Nomihold Securities Inc v. Mobile Telesystems Finance SA (2012) Andrew Smith J assumed that the rule in Henderson v. Henderson (16.55 ff, vol I) will apply if in arbitration X between A and B, B could have readily raised issue P, but did not do so; and then in arbitration Y between A and B, B attempted to raise issue P.

  • Chapter 4 - The Six Phases of Court Proceedings

  • from PART II - COMMENCEMENT OF COURT PROCEEDINGS AND PREPARATION FOR TRIAL
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 63-74

  • Summary

    INTRODUCTION TO THE PRE-ACTION STAGE

    The ‘pre-action phase’ covers the period from the occurrence of the contested issue or relevant ground for complaint to when that matter produces formal civil proceedings. Such fees are prohibited in respect of personal injury claims. Compliance with this ban will be monitored by relevant regulators.

    When the period of prescription (or ‘limitation of actions’) is generous, the pre-litigation phase will not be short: for example, six years for ordinary contractual claims, or even twelve years if the contract is contained in a formal ‘deed’. Perhaps no other subject so vividly reflects the scope for national difference than the fixing of periods of prescription.

    PHASE 1: PRE-ACTION PROTOCOLS

    The CPR (1998) system introduced an important set of ‘pre-action protocols’. As explained in Andrews (2007), a leading aim of the English scheme of pre-action protocols is to promote early and informed settlement, avoiding the expense and inconvenience of formal litigation. This is rooted in the philosophy that formal litigation, notably trial, is a form of dispute resolution which should be treated as a matter of ‘last resort’.

    All civil disputes which are headed for the English courts must comply with this elaborate system of pre-action protocols. They govern the prospective parties’ steps in preparing for commencement of proceedings.

    For the purpose of the English civil process, phase (1), the pre-action stage, is the first stage of the civil dispute in the following respects: (i) it forms part of a series of segments; (ii) it is regulated by the CPR system of rules; (iii) this regime of pre-action regulations applies to all prospective claims within England and Wales; and (iv) there are sanctions applicable if a prospective party fails to comply with the pre-action set of rules.

    This pre-action regime requires prospective parties, in particular: (i) to communicate among themselves the nature of the claim and defence in advance of commencement of proceedings; (ii) to consider opportunities for settlement and resort to ADR, notably mediation (although the latter is not compulsory); and (iii) to make appropriate exchanges of relevant information, including central documents relevant to the case. It follows that in a large and complicated dispute the parties will be engaged in compliance with these requirements for many months.

  • Chapter 4 - The Major Principles of Arbitration and Litigation: A Comparison

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 113-142

  • Summary

    OVERVIEW OF THE PRINCIPLES APPLICABLE TO ARBITRATION OR TO THE JUDICIAL PROCESS

    In chapter 25 of Volume I, it was suggested that there are five constellations of procedural principles relating to court proceedings, and the judicial process in general. Not all of these principles apply to arbitration.

    For convenience, these major principles will be restated here briefly (those principles, namely II, IV, VI and XIV, which do not apply to arbitration will be marked in bold; as for the principle of finality, which is respected more intensely within arbitration law, when compared with litigation, this is underlined in the text below).

    (1) ADVICE AND ACCESS: EMPOWERING THE PARTIES

  • I. Rights of Legal Consultation and Representation

  • II. Access to Court and to Justice (arbitration is an opting-out from public adjudication)

  • III. Protection against Bad or Spurious Claims and Defences

    • (2) CONDITIONS FOR SOUND DECISION-MAKING

  • IV. Judicial Independence (not a separate requirement in English arbitration law)

  • V. Judicial Impartiality

  • VI. Publicity and Open Justice (arbitration is a consensual retreat from open and public justice)

  • VII. Judicial Duty to Give Reasons

    • (3) AN EFFICIENT PROCESS

  • VIII. Judicial Control of the Civil Process to Ensure Focus and Proportionality

  • IX. Avoidance of Undue Delay

    • (4) A FAIR PROCESS

  • X. Judicial Duty to Avoid Surprise: The Principle of Due Notice

  • XI. Procedural Equality (equal respect for the parties)

  • XII. Equal Access to Information, including Disclosure of Information between Parties

  • XIII. Fair Play between the Parties

  • XIV. Accuracy of Decision-making (the arbitral tribunal is shielded from judicial scrutiny of the merits of the decision underpinning the relevant award – that is, the decision on the substance of the dispute; in England this shield applies to findings of fact and applications of foreign law, but section 69 of the Arbitration Act 1996 permits the High Court to control applications for review of arbitral findings of English law.)

    • (5) UPHOLDING JUDGMENT

  • XV. Finality (arbitration respects the principle of finality more intensely than court adjudication)

  • XVI. Effectiveness

    • We will see that the arbitral process substantially embodies the same fundamental principles as court proceedings. However, diff erences do exist: in respect of access (the choice of arbitration precluding resort to the court on questions concerning the merits or the substance of the dispute), publicity, accuracy, finality, and independence.

  • Chapter 17 - Enforcement of Court Judgments and Orders

  • from PART III - END-GAME: TRIAL, APPEAL, FINALITY AND ENFORCEMENT
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 495-516

  • Summary

    MONEY JUDGMENTS

    Fundamental to this topic is the axiom that judgment creditors are free to choose from the portfolio of available enforcement methods. Some creditors might already have extensive knowledge of the defendant's assets. Others will remain in the dark; for these, the next two paragraphs might be illuminating.

    Judgment creditors can apply for an order compelling a judgment debtor (or in the case of a company, one of its officers) to attend the court and to supply information concerning the debtor's means and financial commitments.

    If the judgment debtor is a company, CPR Part 71 enables an order to be made for information to be supplied by the company's officers. But the House of Lords held in Masri v. Consolidated Contractors International Co SAL (2009) that CPR Part 71 does not enable an order for examination to be made against an officer who is outside the jurisdiction, and that CPR Part 6 provides no basis for service out of the jurisdiction of any such order, had it been possible to make one.

    Sections 95–105 of the Tribunals, Courts, and Enforcement Act (‘TCE Act 2007’: 17.08) create new methods of obtaining information concerning debtors’ assets and indebtedness.

    Money judgments can be enforced by:

  • (i) a writ of fiery facias or warrant of execution (these are to re-named ‘writs of control’ and ‘warrants of control’ by the TCE Act 2007);

  • (ii) a third party debt order;

  • (iii) a charging order (against land), stop order (against securities or funds in court), or a stop notice (against securities);

  • (iv) by appointment of a receiver. Some types of pecuniary enforcement are available only in county courts:

  • (v) attachment of earnings orders; and

  • (vi) ‘administration orders’ (Part 5 of the TCE Act 2007 introduces various categories of protection for debtors in this context).

    • State Immunity and Enforcement of Foreign Judgments: The Supreme Court of the United Kingdom in NML Capital Ltd v. Republic of Argentina (2011) held that the State Immunity Act 1978 has the effect that a foreign judgment against a state concerning a commercial transaction (on these facts, a New York judgment concerning bonds issued by Argentina) could be recognised and enforced in England.

Page 391 of 413