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Chapter

Cover A Practical Approach to Effective Litigation

27. Enforcing a Judgment  

The enforcement of a judgment is an issue that must be considered and managed as part of the litigation project from the start. Keeping enforcement in mind at each stage of the litigation process ensures that any possible problems with enforcement are taken into account in any cost-benefit analysis or risk assessment. This chapter first outlines the steps to assist enforcement, which includes deciding who to sue, gathering information, interim orders, settling the case, and drafting orders. It then discusses the methods of enforcing a judgment, including third party debt orders, changing orders, attachment of earnings, winding up and bankruptcy, execution against goods, orders for delivery/possession, receivership, and the use of contempt of court proceedings. The final section deals with the international enforcement of judgements, specifically enforcing a foreign judgment in the UK and enforcing an English judgment in another country.

Book

Cover How to Moot
How to Moot provides guidance and pointers towards all aspects of successful mooting. Topics covered include the nature and attraction of mooting, producing a persuasive presentation, performance, style, and judgements. The text is suitable for use by mooters at all levels: those just starting out will find all the basics set out, and there are advanced tips for the more experienced mooter. The text is divided into short chapters which include chapter summaries and diagrams. The text also includes example moot problems and a transcript of a moot. The approach adopted here is a Q&A one, which provides detailed answers to commonly asked questions.

Chapter

Cover How to Moot

8. Judge and judgment  

This chapter deals with the moot judge and judgment. It addresses the following questions: How is the moot judge's assessment divided between the moot and the law? Is it possible to lose on the law and win on the moot? What actions should be taken if the moot judge has misunderstood a point? What actions should be taken if a moot judge's manner is rude? Can the moot judge and my opponents be interrupted or corrected? What actions should be taken if the moot judge's question is misunderstood? How can judicial questions be turned to an advantage? Will a moot judge make a ruling on the arguments before the conclusion of the moot?

Chapter

Cover A Practical Approach to Civil Procedure

48. Enforcement  

Parties occasionally refuse to comply with the judgments and orders of the court. A range of enforcement procedures is available to ensure compliance. This chapter discusses enforcement of money judgments; enforcement of judgments for the delivery of goods; enforcement of judgments for the possession of land; contempt of court; and enforcement of foreign judgments.

Chapter

Cover Cross & Tapper on Evidence

II. Matters not requiring proof and judicial findings as evidence  

This chapter examines the exceptions to the general rule that all facts in issue, or relevant to the issue, in a given case must be proved by evidence. It shows that sometimes, the judge, or trier of fact, is entitled to find a fact of their own motion: judicial notice may be taken of that fact. Alternatively, a party may formally admit a relevant matter. In addition, a matter may still be determined against a party because the law precludes them from contesting it. They are then ‘estopped’, as when the same matter has been determined against them and in favour of their opponent by a binding and conclusive judgment of a court. Finally, this chapter considers the wider question of the status of judicial findings in other proceedings.

Chapter

Cover A Practical Approach to Civil Procedure

12. Responding to a Claim  

This chapter discusses the procedure for defendants responding to the claim. A defendant who intends to contest proceedings must respond to the claim by filing an acknowledgment of service and/or by filing a defence. Defended claims become subject to the court’s case management system, with the court making provisional track allocation decisions, followed by the parties filing directions questionnaires. If a defendant fails to make any response to a claim a default judgment is usually entered within a relatively short period after service.

Chapter

Cover A Practical Approach to Civil Procedure

13. Default Judgment  

Judgment in default may be entered where the defendant fails to defend a claim. It produces a judgment in favour of a claimant without holding a trial. This chapter discusses when default judgment may be entered; cases excluded from judgment in default; entering default judgment; final judgment and judgment for an amount to be decided; deciding the amount of damages; setting aside default judgments; and stay of undefended cases.

Chapter

Cover A Practical Approach to Civil Procedure

24. Summary Judgment  

Summary judgment is used where a purported defence can be shown to have no real prospect of success and there is no other compelling reason why the case should be disposed of at trial. The procedure for entering summary judgment is not limited to use by claimants against defendants. Defendants may apply for summary judgment to attack weak claims brought by claimants. This chapter discusses time for applying for summary judgment; defendant’s application for summary judgment; excluded proceedings; orders available; amendment at hearing; other compelling reasons for a trial; directions on summary judgment hearing; and specific performance, rescission, and forfeiture in property cases.

Chapter

Cover Cross & Tapper on Evidence

XVI. Proof of frequently recurring matters  

This chapter describes different ways in which evidence may be given of certain matters that frequently have to be proved in litigation. Proof of foreign law, identity, birth, death, age, marriage and legitimacy, judgments, convictions, and other orders of the court are discussed here. With foreign law, the general rule is that it must be proved by an expert witness. For questions of identification, the question of evidence becomes more complicated, with the chapter exploring direct, circumstantial, and presumptive evidence in relation to identity. After a brief look into birth, death, age, marriage, and legitimacy, the chapter finally turns to the proof of judgments and convictions.

Chapter

Cover Anson's Law of Contract

16. Discharge by Operation of Law  

Jack Beatson, Andrew Burrows, and John Cartwright

This chapter considers the rules of law which, operating upon certain sets of circumstances, will bring about the discharge of a contract. The discussions cover mergers, discharged by judgment of a court, alteration or cancellation of a written instrument, and bankruptcy.

Chapter

Cover Clarkson & Hill's Conflict of Laws

3. Foreign judgments  

Jonathan Hill

This chapter deals with the recognition of enforcement of foreign judgments by English courts. The crucial question is not whether foreign judgments should be recognised and enforced in England but which judgments should be recognised and enforced. There are, broadly speaking, two theories. The first is the theory of obligation, which is premised on the notion that if the original court assumed jurisdiction on a proper basis the court's judgment should prima facie be regarded as creating an obligation between the parties to the foreign proceedings which the English court ought to recognise and, where appropriate, enforce. The alternative theory is based on the idea of reciprocity: the courts of country X should recognise and enforce the judgments of country Y if, mutatis mutandis, the courts of country Y recognise and enforce the judgments of country X. Whichever theory is adopted, the recognition and enforcement of foreign judgments is limited by a range of defences which may be invoked by the party wishing to resist the judgment in question. It would be unrealistic to expect the English court to give effect to a foreign judgment which conflicts with fundamental notions of justice and fairness. So, the recognition and enforcement of foreign judgments is a two-stage process: Are the basic conditions for recognition or enforcement satisfied? If so, is there a defence by reason of which the foreign judgment should nevertheless not be recognised or enforced? The remainder of the chapter discusses the recognition and enforcement at common law; statutory regimes based on the common law; recognition and enforcement under the Brussels I Recast; and United Kingdom judgments.

Chapter

Cover Company Law

10. Directors’ duties I: duties of performance  

This chapter studies the codification of the director’s duties, how breach of duty can be avoided, and the duties in ss 171–74 of the Companies Act 2006 (CA 2006). Sections 171–74 of the CA 2006 provide that a director is under a duty to act in accordance with the company’s constitution; a duty to act in a way that would promote the success of the company; a duty to exercise independent judgement; and a duty to exercise reasonable skill, care, and diligence. Ultimately, the standard expected under s 174 is that of a reasonably diligent person with the general knowledge, skill, and experience that the director has. Meanwhile, a breach of duty may be avoided if the breach is approved or authorized, ratified under s 239, or if the court relieves the director of liability under s 1157.

Chapter

Cover A Practical Approach to Effective Litigation

24. Presenting a Case in Court  

This chapter discusses the process of presenting a case in court. It begins with an overview of the trial process, covering the timetable, the claimant's case, the defendant's case, closing speeches, and judgment. It then explains the importance of good presentation and advocacy in winning a case. This involves focusing on the issues on which the judge needs to reach a decision; presenting the case clearly, coherently, and concisely; developing and presenting an overall theory for the case — a single story can be more convincing than a lot of separate arguments; and developing persuasive arguments that pull elements of the case together and deal with any gaps. The remainder of the chapter covers the judgment of the case; the drawing up of orders; and the form of orders.

Chapter

Cover English Legal System Concentrate

4. Sources of Law II: Case Law  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter focuses on case law, a major source of law providing for the interpretation of statutes and the application of law to particular circumstances. Case law, also known as the common law, is a set of judge-made rules that have either a binding or persuasive effect on future cases. Judge-made means that a member of the judiciary has decided a case in a certain way, which has led to the development of that particular piece of law. Certain courts are obliged to follow previous judgments, whereas other can ignore them due to their seniority. Indeed, the doctrine of precedent denotes a system of case law—binding or not—that a lower court may or may not have to follow. Whether precedent is binding is dependent on whether there is a statement of law, as opposed to fact, certain reasoning for that decision (known as ratio decidendi), and the decision of a superior court.

Chapter

Cover English Legal System Concentrate

8. The Civil Justice System  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter discusses the civil justice system. Civil justice is concerned with the private dispute between individuals in the absence of the state. It seeks to solve disputes before they have had a chance to enter the legal structure, through the use of alternative dispute resolution (ADR). Civil justice follows a similar pattern to its criminal counterpart; however, some of the procedural rules—specifically those relating to evidence—appear to be much more relaxed than in the criminal justice system. During the process of civil justice, a number of issues may arise which would bring the procedure to an end. These issues include ADR, through which parties may decide to settle the case at any point; default judgment, wherein judgment may be entered against a defendant at any point in the proceedings; and offers to settle, known as ‘Part 36 Offers’, in which an individual makes an offer to another without prejudice.

Book

Cover Smith, Hogan and Ormerod's Essentials of Criminal Law
Smith, Hogan, and Ormerod’s Essentials of Criminal Law presents a clear and authoritative discussion of the criminal law, combining authority with supportive learning features. The book engages with all the key topics of criminal law on the typical LLB syllabus, whilst encouraging the development of analytical and assessment skills. Particular attention is paid to student assessment, with end-of-chapter sections offering advice on how to approach essay and problem questions. Short learning and assessment tips are provided throughout the chapters. Key cases are highlighted across chapters which include brief summaries of the main facts and judgment. Each chapter includes a section on reform, introducing important academic criticism of the law.

Chapter

Cover A Practical Approach to Civil Procedure

40. Remote Hearings  

Traditionally, civil hearings take place in court buildings, with hearings being conducted in public in court rooms in front of a judge. Active case management in accordance with the overriding objective includes dealing with cases without the parties needing to attend court, and by making use of technology (CPR, r 1.4(2)(j) and (k)). There is provision in the CPR for holding hearings by telephone, by video, or by any other means which permits simultaneous communication (r 39.1(1)(a)), and for receiving evidence by telephone or by using any other method of direct oral communication (r 3.1(2)(d)). Increased public proficiency with information technology, combined with the emergency created by the coronavirus outbreak in 2020, have resulted in the courts embracing computer technology for remote hearings for civil proceedings.

Chapter

Cover A Practical Approach to Civil Procedure

41. Judgments and Orders  

This chapter discusses the rules on judgments and orders. Although there is likely to be a delay between judgment being pronounced and the judgment being sealed and served, r 40.7(1) of the Civil Procedure Rules 1998 (CPR) provides that judgment in fact takes effect from the day it was given. After a judgment or order has been pronounced by the court, the next step is to have it drawn up. This chapter discusses settlements; orders made at hearings; form of judgments and orders; general rules relating to drawing up orders and judgments; and register of judgments.

Book

Cover Smith, Hogan, and Ormerod's Essentials of Criminal Law
Smith, Hogan, and Ormerod’s Essentials of Criminal Law presents a clear and authoritative discussion of the criminal law, combining authority with supportive learning features. The book engages with all the key topics of criminal law on the typical LLB syllabus, whilst encouraging the development of analytical and assessment skills. Particular attention is paid to student assessment, with end-of-chapter sections offering advice on how to approach essay and problem questions. Short learning and assessment tips are provided throughout the chapters. Key cases are highlighted across chapters which include brief summaries of the main facts and judgment. Each chapter includes a section on reform, introducing important academic criticism of the law.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

25. Construction Industry Adjudication  

This chapter looks at the process of adjudication in construction industry disputes. Adjudication resembles arbitration, in that it produces a decision on the dispute, but one that is only of a temporary nature. The process involves an adjudicator reaching a decision very swiftly (only 28 days after appointment), with the idea being to get a decision on how much a contractor should be paid, potentially followed by a full-blown investigation through the courts or in a formal arbitration if either party does not agree with the adjudicator's decision. The underlying policy is ‘pay now, argue later’. An adjudication award is binding, but is not registrable as a judgment, unlike an award in arbitration. Instead, enforcement is through suing on the adjudicator's decision, often followed by the entry of judgment in default or an application for summary judgment.