22. Judgments, Orders, and Enforcement Flashcards
In what courts are money judgments enforced?
A judgment or order of the County Court for the payment of money which is sought to be enforced wholly or partially against goods shall be enforced only in the High Court where £5k or more, only in the CC where less than £600 (except for money under the employment tribunals act), and in any other case may be enforced in either the high court or county court.
Who will draw up judgments/orders?
Generally the court, unless:
1. The court orders a party to draw it up;
2. A party, with permission of the court, agrees to draw it up
3. The court dispenses with the ned to draw it up; or
4. It is a consent order
5. Or it is in the KBD at the Royal Courts of Justice, other than the admin court, will be drawn up by the parties (except for orders of its own initiative or otherwise ordered)
What may the court direct re an order that is being drawn up by a party?
That it must be checked by the court before it is sealed
What may a court direct re an order that is being drawn up by the court?
The parties must file an agreed statement of its terms
Where a judgment or order is to be drawn up by a party, when must it be filed by? What happens if he fails to file it within that period?
No later than 7 days after which the court ordered or permitted him to draw it up so that it can be sealed by the court.
If he fails to file it, any other party may draw it up and file it
What must happen re service where a judgment or order has been drawn up by a party and is to be served by the court?
The party who drew it up must file a copy to be retained at court and sufficient copies for service on him and other parties; and
Once it has been sealed, the court must serve a copy of it on each party to the proceedings
Who must an order otherwise at trial be served upon?
Unless otherwise directed by the court:
1. The applicant and respondent; and
2. Any other person on whom the court orders to be served
What is a consent order/judgment?
One in which all the parties agree the terms in which it should be given or made
When may a court officer enter and seal an agreed judgment or order?
If it is a judgment or order for:
1. The payment of money (incl a judgment or order for damages or value of goods TBD by the court); or
2. Delivery up of goods with or without the option or paying for their value
OR
An order for:
1. The dismissal of any proceedings, wholly or in part
2. The stay of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the other or elsewhere;
3. The stay of enforcement of a judgment, unconditionally or on condition that money due is paid in instalments specified
4. The setting aside of a default judgment which has not been satisfied
5. The payment out of money which has been paid into court
6. Discharge from liability of any party
7. Payment, assessment, or aiver of costs, or such other provision for costs as may be agreed
AND
Neither party are LIPs
And no CPR or PD makes approval of court necessary before an agreed order can be made
Such judgments are to be drawn up in accordance with the normal rules on drawing up judgments/orders
May a consent order still be made even if any of the perquisites for making a consent order are not present?
Yes, a party may apply for such a judgment or order in the terms agreed
The court may deal with such an application on the papers
What must happen on the face of a consent order?
- It must be drawn up in the terms agreed;
- Expressed as being ‘by consent;
- And signed by the legal rep acting for each of the parties, or by a LIP himself.
When does a judgment take effect?
From the day it was given or made, or such later date as may be specified
Does not apply to judgment against a state.
What are Tomlin orders?
An order in which proceedings are stayed on agreed terms to be scheduled to the order.
They record terms of settlement agreed between the parties but those terms are not ordered by the court and are not enforceable without a further order.
Most cases conclude with such an order
How should a Tomlin order read?
The claimant and the defendant having agreed to the terms set out in the schedule hereto, IT IS ORDERED THAT all further proceedings in this claim be stayed except for the purpose of carrying such terms into effect. Permission to apply as to carrying such terms into effect.”
There is a draft for it
Are the terms in the schedule of a Tomlin order enforceable?
No, as they are not technically part of the order. They cannot be directly enforced.
Does a Tomlin order being created mean that the public can inspect a schedule of such an order?
No.
Any confidentiality of such a schedule is also not a derogation from the principle of open justice
The court should also not demand to see a confidential agreement which is scheduled in a Tomlin order.
Where should a provision seeking a detailed assessment of costs be given in a Tomlin order?
In the body of the order, not in the schedule. Otherwise, the costs judge will not be able to carry out the assessment
What orders does a judge usually make for a Tomlin order?
That the proceedings are to be stayed to enable the agreed terms to put into effect;
That, if the terms require it, there by a payment out of monies paid into court and provision for accrued interest thereon;
For costs to be assessed, whether between the parties or out of public funds
In an application to commit, can terms of a Tomlin order be enforced?
Not unless an injunction or order for specified performance is first obtained. Hence the need for permission to apply for the purpose of carrying such terms into effect
What relevance is limitation for Tomin orders?
They are a simple contract, hence the six-year time limit applies. Moreover, an application to enforce obligations is an application to enforce the court’s own order, to which 17.4 (amendments to statements of case after the end of a relevant limitation period) does not apply.
Can terms in a Tomlin order be rectified?
Yes, under standard contractual principles.
However, the court does not have a general power to vary the terms of a settlement in a Tomlin order
How are terms in a Tomlin order to be interpreted?
It must be construed as a commercial instrument. The aim of the inquiry is not to probe the real intentions of the parties but ascertain the contextual meaning of the relevant contractual language; the inquiry is objective.
What could be a useful device where a claimant in a personal injuries claim is pressing for a provisional damages award and an order permitting variation of the periodic payments?
A Tomlin order may be useful for settling quantum on a conditional basis.
That is to say, in such an order the parties may stipulate that the agreed lump sum payable and periodical payments for future care and case management and for future loss of earnings set out in the order would be treated as provisional or variable or otherwise, dependent upon a ruling by the court as to whether a provisional damages claim and an application to vary the periodical payments were appropriate
Is there any trust created under a Tomlin order?
Yes.
The effect of the terms of compromise recorded in a Tomlin order is that the defendant has irrevocably dedicated the property, the subject matter of the agreed terms, to the purposes of the compromise. The defendant would be required, if necessary by an order, for specific performance, to realise the property as agreed with the claimant. The compromise imposes an immediate trust
Can a declaration be given as to the proper interpretation of the terms of settlement contained in a Tomlin order?
The court may grant a declaration concerning the proper interpretation of the terms of a settlement contained in a Tomlin order.
Such a declaration may be granted on a standalone application or as part of an application to enforce the terms of the settlement.
If the court considers terms in a settlement appended to a consent order too vague, what will it do?
the court will decline to enforce them under the “permission to apply” provision of the order
Where terms in a Tomlin order go beyond the ambit of the original dispute, can they still be enforced?
Yes.
Where the scheduled terms are clear, an order to give effect to them can be obtained under the “permission to apply” provision, notwithstanding that they go beyond the ambit of the original dispute, could not have been obtained or enforced in the original action and that the obligation did not exist but arose for the first time under the compromise
Indeed, one of the advantages of a Tomlin order is that the parties can include in the schedule provisions which could not have been ordered by the court and which go beyond the limitations of the dispute itself.
What must the parties do if they intend a settlement in a Tomlin order to be able to be enforced as an order?
They must put them in the body of the order, not merely the schedule.
Such an order should not include provision for a stay of the proceedings as there would be no point to such a stay.
How will the terms of an agreement in a Tomlin order be considered if the terms are disclosed to the judge approving the order?
The terms of the agreement will form part of the order
Are Tomlin orders always necessary where parties agree to something?
No.
A Tomlin order is not necessary where all that is required is an order that one party shall pay money to the other. The order should say “The defendant will pay to the claimant £x in full and final settlement of his claim by [date].” (Add an order for assessment of costs, if required.) The court cannot order a party to accept so the order should not say, for example, “The claimant will accept £x in full and final settlement of the claim.” Similarly, the court cannot order a party to discontinue a claim: the order should say, for example “Upon the claimant discontinuing the claim and the defendant discontinuing the counterclaim, it is ordered that there be no order for costs.” An order to this effect is not a Tomlin order, but a Tomlin order would not be appropriate in such a case.
What must the parties consider where they are thinking about Tomlin orders?
Whether they need the terms enforceable in a normal order or do not, with a Tomlin order (i.e. because the terms are set out in a schedule)
Are judges concerned about the terms in a Tomlin order’s schedule?
No.
What should practitioners ensure re Tomlin orders?
practitioners should ensure that the terms are clear and should consider how the proposed terms would be enforced in the event of default.
Parties cannot, through the terms of a Tomlin order, confer jurisdiction through the “liberty to apply” provision in such an order on a court that it would not otherwise have so also should consider whether a different order is necessary
Where a Tomlin order contains the terms of carrying out remedial work and paying P’s “costs of this action”, do such costs include those incurred in carrying out those terms into effect?
Yes
Where the terms of a Tomlin order differ between the terms of the agreement, can anything be done?
Yes. The court has an inherent jurisdiction to fix this.
Is a Tomlin order still binding where a judge, who is being asked to approve a Tomlin order, edits the agreement to make it clearer?
Yes, if assent can be implied.
When does interest run from on a judgment?
Where it is so payable, it will begin to run from the date that judgment is given unless:
a rule or PD makes different provision or
the court orders otherwise
What may the court order re interest on a judgment given?
That it shall begin to run from before the date that judgment is given
Can a judgment’s enforcement be stayed?
Yes, a party against whom a judgment has been given or an order made may apply to the court for:
- A stay of execution of the judgment or order;
- Or other relief
On the ground of matters which have occurred since the date of judgment or order, and the court may by order grant such relief, on such terms, as it thinks just.
Who may apply to set aside or vary a judgment or order?
A person who is not a party nut who is directly affected may apply to have it set aside or varied.
When should a judgment or order for payment be complied with?
Within 14 days, unless:
1. The judgment specifies a different date
2. Any CPR specifies a different date
3. The court has stayed the proceedings or judgment
May a judgment/order be corrected for errors?
Yes, at any time for accidental slip or omissions
If a party notices an accidental slip or omission in a judgment, what should they do?
They may apply for a correction without notice.
The application notice (which may be informal such as a letter) should describe the error and set out the correction required.
Where the court gives judgment on both a claim and counterclaim for the respective claimants, what may the court do re the judgment?
If there is a balance in favour of one party, it may order that party whose judgment is for the lesser amount to pay the balance.
Where the court gives judgment on both a claim and counterclaim for the respective claimants, what may the court do re costs?
It may make a separate order as to costs
Is there a hearing where a party applies for the court to correct an accidental slip or omission in its judgment?
Not necessarily. It may deal with it without a hearing:
1. Where the applicant so requests
2. With the consent of the parties
3. Or where the court does not consider a hearing would be appropriate
Is notice required where there is an obvious slip/error in a judgment and a party is applying for a correction?
No, the judge may deal with it without notice. Equally, it may direct notice of the application to be given to the party or other parties.
Where a party applies for the court to correct an accidental slip or omission in its judgment, what happens if it is opposed?
It should be listed for a hearing before the judge who gave the judgment or order
Can the judge vary his own order so as to make it clearer?
Yes
Where a judge makes an order requiring an act to be done, what should be specified?
The time in which the act should be done.
The consequences should also be set out.
Should be done something like this:
Unless the Claimant services his list of documents by 4.00pm on Friday, 22 January 1999 his claim will be struck out and judgment entered for the defendant.
How are money judgments enforced?
A judgment or order of the County Court for the payment of money which is sought to be enforced wholly or partially against goods shall be enforced only in the High Court where £5k or more, only in the CC where less than £600 (except for money under the employment tribunals act), and in any other case may be enforced in either the high court or county court.
Where a fine is not paid in accordance with the order imposing it, what should which person do?
The court office shall report the matter to a judge as soon as is reasonably possible
Where a fine is directed to be paid in instalments, what may default in payment of any instalment be taken as?
As if default had been made in payment of the whole of the fine
How shall an order made for payment of a fine to be enforced by warrant of control to be treated?
As an application to the court for the issue of the warrant at the time when the order was made
What may happen where a person pays a fine and later satisfies the court that, if the evidence was given earlier, no fine or a smaller one would have been imposed?
The court may order the whole or part of the fine to be repaid
What methods of enforcement can be used for payments of money?
They may use any or multiple (either at the same time or one after another):
INSERT PD 71A
What is a ‘disobedient party’?
A party who has not complied with a mandatory order, an injunction, or a judgment or order for specific performance
What may a court direct if a mandatory order, an injunction, a judgment, or order for specific performance is not complied with?
Another person may do this as so far as practicable, being, the party by whom the order/judgment was obtained or some other person so appointed.
Where a court directs that another person may carry out a judgment/injunction/order for specific performance:
1. The costs to the other person will be borne by the disobedient party;
2. Expenses incurred may be ascertained in such a manner as the court directs; and
3. Execution may issue against the disobedient party for such expenses/costs
Without prejudice to the power to order another to execute an instrument or to punish the disobedient party for contempt.
What must a judgment creditor wishing to enforce a High Court judgment or County Court order do first?
Apply to the High Court for an order transferring the proceedings.
What is the effect of setting aside a judgment or order for enforcement?
Any enforcement shall cease to have effect unless the court orders otherwise.
How may a judgment or order given against a non-party be enforced?
By or against that person by the same methods as if he were a party
What does a writ of execution include?
- Writ of possession
- Writ of delivery
- Writ of sequestration
- Writ of fieri facias de bonis ecclesiasticis
And any further writ in aid of such writs, but not a writ of control
How may a judgment creditor enforce a judgment or order for payment of money?
- Writ of control or warrant of control
- Third party debt order
- Charging order
- An attachment of earnings order
What are oral examinations in terms of enforcing judgments?
What are oral examinations in terms of enforcing judgments?
A way to get information from a judgment debtor for the purpose of the creditor being able to ascertain which method or methods of enforcement should be used.
Not available pre-action. Must be a judgment.
Why would you wish to request a transfer for enforcement proceedings from the high court to the country?
That this has exclusive jurisdiction to make an order for attachment of earnings
Why would you want to transfer enforcement proceedings to the high court?
To use a high court enforcement officer to levy execution. Only where the sum is less than £600 would it be unable to be obtained. Obviously, those above £5000 must be enforced in the High Court
Where a person wants to obtain more information from his judgment debtor, what can he do?
Apply for an order requiring a judgment debtor (or one of its officer’s) to attend court to provide information about:
1. Any judgment debtor’s means; or
2. Any other matter which information is needed to enforce a judgment or order
How should the judgment creditor make the application for information from the judgment debtor (i.e. notice e.c.t.)?
It may be made without notice;
But any application notice must be in the form and contained the information required under PD71 (i.e. who, what judgment, if before a judge or not, the money owed, their name or address, if not for enforcement of a money judgment the matters to be enforced, what documents are needed e.c.t.).
Must be issued in the court or CC hearing centre which made the judgment or order except where:
1. The proceedings have since been transferred (at that point, it should be issued in that court); or
- It is to enforce a judgment made in the CNBC
Can a request for an order for more information from a judgment debtor be dealt with without a hearing?
Yes
Does a court have discretion on whether to issue an order for information from a judgment debtor?
No, if the application notice is in the correct form and contains the required information.
What must a person served an order for information as a judgment debtor do?
They must:
1. Attend court at the time and place specified in the order;
2. When he does so, produce at court document in his control which are described in the order; and
3. Answer on oath such questions as the court may require
Is there a penal notice for orders for information from judgment debtors?
Yes. It is:
“If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law”
How/when should an order for information from judgment debtors be served?
It must be served personally on the person ordered to attend not less than 14 days before, unless the court orders otherwise.
How is a hearing for information from judgment debtors held?
Will be questioned on oath.
The questioning will be carried out by a court officer unless the court has ordered the judgment shall be before a judge.
If it is before a court officer, the judgment creditor or representative may attend and ask questions.
If it is before a judge, the judgment creditor or representative may attend and ask questions
What happens if a person fails to comply with an order for information from a judgment debtor?
If they fail to attend, refuses to take the oath or answer any question, or otherwise fails to comply with the order, the court will refer the matter to a High Court judge or CJ.
That judge may hold the person in contempt of court and make an order punishing them by a fine, imprisonment, confiscation of assets or other punishment under the law.
If such an order is made, the judge will suspend the order provided that they:
1. Attend the court at a time and place specified in the order; and
2. Complies with all the terms of that order and the original order;
But if that person fails to comply with any term on which the order is suspended, they shall be brought before a judge to consider discharging the order
What form does an application notice for information from a judgment debtor need to be in?
For an individual: N316.
For a company: N316A.
The application notice must –
(1) state the name and address of the judgment debtor;
(2) identify the judgment or order which the judgment creditor is seeking to enforce;
(3) if the application is to enforce a judgment or order for the payment of money, state the amount presently owed by the judgment debtor under the judgment or order;
(4) if the judgment debtor is a company or other corporation, state –
(a) the name and address of the officer of that body whom the judgment creditor wishes to be ordered to attend court; and
(b) his position in the company;
(5) if the judgment creditor wishes the questioning to be conducted before a judge, state this and give his reasons;
(6) if the judgment creditor wishes the judgment debtor (or other person to be questioned) to be ordered to produce specific documents at court, identify those documents; and
(7) if the application is to enforce a judgment or order which is not for the payment of money, identify the matters about which the judgment creditor wishes the judgment debtor (or officer of the judgment debtor) to be questioned.
What may the court officer considering an application for information from a judgment debtor do?
They may refer it to a judge.
They WILL refer it to the judge if the creditor requests it.
Where will an order to get information from a judgment debtor specify the person needs to go?
The county court hearing centre serving the address where the debtor resides or carries o business, unless a judge decides otherwise
When will an order for information to be provided to the court be ordered to take place before a judge?
Where the judge considers there are compelling reasons to make such an order.
What questions will be asked of a judgment debtor where they are ordered to provide information before a court officer?
The court officer will ask a standard series of questions as set out in the forms in the appendices A and B of PD71.
Appendix a is for an individual and B is for a company
The judgment creditor or his representative may also attend and ask questions himself, or request the court officer to ask additional questions by attaching a list of proposed additional questions to his application notice.
What will the court officer do where a judgment debtor is giving evidence in for ordered information?
The court officer will:
1. Make a written record of the evidence, unless the proceedings are tape recorded
2. At the end of questioning, read the record of evidence to the person questioned and ask him to sign it; and
3. If the person refuses to sign it, note that refusal on the record of evidence
What questions will be asked of a judgment debtor where they are ordered to provide information before a judge?
The questioning will be conducted by the judgment creditor or his representative, and the standard questions in the appendices will not be used
Will proceedings to get information from a judgment debtor heard before a judge be recorded?
Yes, they will be tape recorded. The court will not make a written record of the evidence.
What is a third-party debt order?
Is an order to make someone who owes a debt to a judgment debtor to pay that money to the judgment creditor.
The order is obtained without notice on an interim basis.
A hearing follows when the court decides whether to make a final third-party debt order.
Can a third-party debt order be obtained against a person’s bank account?
Yes.
This is because it is a debt due by the bank to its customer.
Such bank or building society would be required to search and disclose information to the court and judgment creditor
Where a person objects to a third-party debt order being obtained, what should they do?
They should file and serve written evidence stating the grounds for the objection.
Can a debtor who has an interim third-party debt order withdraw money from his bank account where one is made against his bank?
No.
They may, however, obtained a hardship payment order where they are an individual to stop him coming into hardship.
Who hears third party debt order applications?
Masters or DJs.
What can a third-party debt order entail?
Requiring a third party to pay the judgment creditor:
1. The amount of any debt due or accruing to the judgment debtor from the third party; or
2. So much of that debt as is sufficient to satisfy the judgment debt and the judgment creditor’s costs of the application
Will a court make a third-party debt order on a final basis without first making it on the interim?
No. it is prohibited from doing so.
Where there are conditions on money being withdrawn from a bank account, will those conditions need to be taken into account when deciding whether to make a third party debt order?
No. they are to be disregarded.
Is it possible to obtain a third party debt order against a jointly held bank account?
No.
what must an application notice for a third party debt order contain?
In the form and contain the information required by PD 72.
The required form is N349.
The required information is:
(1)
the name and address of the judgment debtor;
(2)
details of the judgment or order sought to be enforced;
(3)
the amount of money remaining due under the judgment or order;
(4)
if the judgment debt is payable by instalments, the amount of any instalments which have fallen due and remain unpaid;
(5)
the name and address of the third party;
(6)
if the third party is a bank or building society—
(a)
its name and the address of the branch at which the judgment debtor’s account is believed to be held; and
(b)
the account number;
or, if the judgment creditor does not know all or part of this information, that fact;
(7)
confirmation that to the best of the judgment creditor’s knowledge or belief the third party—
(a)
is within the jurisdiction; and
(b)
owes money to or holds money to the credit of the judgment debtor;
(8)
if the judgment creditor knows or believes that any person other than the judgment debtor has any claim to the money owed by the third party—
(a)
his name and (if known) his address; and
(b)
such information as is known to the judgment creditor about his claim;
(9)
details of any other applications for third party debt orders issued by the judgment creditor in respect of the same judgment debt; and
(10)
the sources or grounds of the judgment creditor
It also must be verified by a statement of truth
How is an application for a third party debt order made?
It:
1. May be made without notice
2. Must be issued in the court which made the judgment or which it is sought to enforce, save for:
a. where it is been transferred (so therefore in that court the app should be made), or
b. where it was made in the CNBC
Will a court grant a third party debt order where the application is speculative?
No. it will only make it if the evidence is there to substantiate the creditor’s belief that the debtor has an account there.
What is a charging order?
An order imposing on property of a judgment debtor as may be specified in the order a charge for securing the payment of any money due under the judgment or order
The effect is to give an equivalent to a mortgage over the land specified. Subject to any prior mortgages or charges. It does not affect the accrual of judgment interest.
What kinds of charging orders are there?
- One on land (the most common)
- One on securities
- One over a debtor’s interest in a fund in court; and
- A charge of the debtor’s interest in partnership property
What can a judgment creditor get where they have a charging order over land?
An order for sale so that, subject to prior encumbrances, they can be paid their judgment debt and accrued interest out of the proceeds of sale
In what court are charging orders made?
Mainly the county court.
The High Court’s jurisdiction is limited. The only situation where the High Court has exclusive jurisdiction is where the property to be charged is a fund lodged in the High Court.
In all other cases there is a concurrent jurisdiction, except the county has exclusive jurisdiction re funds lodged in the county court or county court judgment.
The jurisdiction of the county to make a land charging order is unlimited.
How far into the process can court officers at the CNBC deal with charging order applications?
Up to and including the making of interim charging orders in most circumstances
What court should an application for a charging order be made to?
The one in which the order or judgment was made.
What is the process for obtaining a charging order?
A two stage process.
An interim charging order is obtained without notice.
Under the new procedure, the CNBC will deal with applications via court officers generally. sometimes a DJ may do it.
Legal advisers exercising the county court CNBC jurisdiction can make final charging orders where the application is unopposed.
How can evidence of a person’s ownership of land for a charging order be ascertained?
Either through the process to get information from judgment debtors or through an official copy from the land registry.
Searched can be made on the internet.
How will an application for a charging order be decided (in terms of hearing or not)?
In absence of a response, the application will be considered by a judge or legal adviser without a hearing.
A legal adviser may make a final charging order but only if it provides for the continuation of the interim charging order without modification.
A dj may make a final charging order with or without modification or any other order as the court considers appropriate.
If an objection IS filed, the application will be sent to the debtor’s home court for the fixing of a DJ hearing. Notice will be served by the court on the parties any on any other person I respect of whom the judgment debtor has filed a certificate of service in relation to the app and interim charging order.
Where not made in the CNBC, the procedure is that a final hearing date will be fixed.
Can charging order be made against matrimonial homes?
Yes.
Where it is owned by the judgment debtor solely or with a spouse who is also a judgment debtor, the charge will be against the land itself.
However, where it is owned by a debtor and another, the order ranks as a charge on the debtor’s beneficial interest rather than upon the land itself.
How should an application for a charging order be made?
It can be made without notice
Where it is to be made to the county court, it must be made to the CNBC unless it is for a charging order over an interest in a fund in court at which point it should be made to the county court hearing centre where the order or judgment was made.
A judgment creditor may apply for a single charging order in respect of more than one judgment or order against the same judgment debtor (except where they are to be issued in different courts)
What must the application notice for a charging order contain?
Must be in the form N379 for land, or N380 for securities.
Must contain the following information:
The application notice must contain the following information—
(1)
the name and address of the judgment debtor;
(2)
details of the judgment or order sought to be enforced;
(3)
the amount of money remaining due under the judgment or order;
(4)
if the judgment debt is payable by instalments—
(a)
whether the order was made on or after 1 October 2012; and
(b)
the amount of any instalments which have fallen due and remain unpaid;
(5)
if the judgment creditor knows of the existence of any other creditors of the judgment debtor, their names and (if known) their addresses;
(6)
identification of the asset or assets which it is intended to charge including, where applicable, the title number under which any land upon which it is sought to impose a charge is registered;
(7)
details of the judgment debtor’s interest in the asset; and
(8)
the names and addresses of the persons on whom an interim charging order must be served under rule 73.7.
Where the creditor applies for a charging order for more than one asset, how many orders will be made?
It will draw up a separate order relating to each asset
Where is permission of the court required for issue of a writ or warrant?
- Where six years or more have elapsed since judgment or order;
- Any change has taken place, whether by death or otherwise, in the parties:
a. Entitled to enforce the judgment or order; or
b. Liable to have it enforced against them; - The judgment or order is against the assets of a deceased person coming into the hands of their executor’s or administrators after the date of judgment or order, and it is sought to execute against such assets
- Any goods to be seized are in the hands of a receiver
- Under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled (other than for non-compliance with the terms of suspension of enforcement is the failure to pay money
- The permission is sought for a writ of control or writ of execution in the aid of another such writ or
- the application is made for a writ of sequestration
Who enforces judgments?
The creditor. It is up to them to decide when and how to enforce judgment.
For the rules on writs and warrants, what do they not apply to?
Against the crown or a judgment or order of the court of appeal.
What are writs and warrants of control?
Enable the taking control and sale of goods to recovery money.
Power to take control of goods are also able to be given under writs and warrants of possession and delivery and on power to distrain.
Are there prescribed forms for writs and warrants?
Yes. They must be used wherever applicable with such variations the circumstances of the particular case require.
What must a writ/warrant correspond with?
The names of the parties and to the subject-matter of the judgment.
What distinction is there in terms of priority between writs and warrants?
For writs, the priority is when it is delivered to the relevant enforcement officer, whereas the priority of a warrant of control is determined by reference to the date on which it was issued.
May a writ of control be set aside?
Yes.
Where shall an application for an order for enforcement of county court judgments for the payment of a sum of money in which it is sought to enforce wholly or partially against goods be made?
In the high court only where over £5,000
In the county court only below £600.
In all other cases either.
How is an application for permission for a warrant or writ to be issued made?
Can be made without notice being served on any other party unless the court directs otherwise
In any application notice, they must:
(a) identify the judgment or order to which the application relates;
(b) if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed;
(c) where the case falls within paragraph (3)(a), state the reasons for the delay in enforcing the judgment or order;
(d) where the case falls within paragraph (3)(b), state the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;
(e) where the case falls within paragraph (3)(c) or (d), state that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that that person has refused or failed to do so;
(f) give such other information as is necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment or order, and that the person against whom it is sought to issue execution is liable to execution on it.
If because of one event an applicant seeks permission under 3(b) [change has taken place in the parties] for a writ or warrant of control, do multiple applications need to be made? How should such an application be made?
No.
They would attach a schedule specifying all judgments or order in respect of which the application is made.
If the application notice is directed to be served on any person, it need only set out such party of the application as affects them
What happens where the court grants permission for a writ to be issued but it is not issued within one year after the date of the permission order?
The order will cease to have effect. It can grant a fresh one
What is the process for enforcement via taking control of goods?
- The enforcement agent gives notice of enforcement to the debtor
- The debtor makes contact with the enforcement agent and pays the debty or enters into an arrangement for payment or the enforcement agent takes control of goods
- Goods may be taken control by the enforcement agent in four ways. Securing the goods on premises, securing goods on highway, removing goods and storing them elsewhere or by entry into a controlled goods agreement. The enforcement agent may only do this within the prescribed period and on any day of the week within certain hours
- The goods are then sold at public auction
- The proceeds of sale are used to pay the amount outstanding, which includes the debt and costs
Are items not belonging to the debtor potentially liable to seizure?
No. they are protected
What applications may an enforcement agent seeking to enforce by taking control of goods make?
To:
1. Shorten the period of notice to the debtor for enforcement
2. Extend the prescribed period within which the agent may take control of goods
3. Take control of goods during prohibited periods
4. Enter, re-enter, or remain on premises outside permitted hours
5. Re-enter premises giving less than the minimum amount of notice
6. Issue a warrant in respect of specified premises and to use reasonable force to enter premises
7. To use reasonable force in respect of goods on a highway
8. To sell other than by public auction
9. To deal with abandoned goods
10. To obtain exceptional disbursements
The debtor, creditor, any co-owner and enforcement agent may also make applications to resolve disputes about their share of proceeds and about recoverable fees and expenses
The debtor may also make an application for a remedy in relation to goods taken into control
What is a controlled goods arrangement?
This is an agreement under which the enforcement agent and debtor agree terms for repayment of sum outstanding under the judgment or order.
Must be in writing and signed by both agent and debtor or someone in authority.
The debtor must be provided with a copy of the agreement, regardless of whether or not it is the debtor or someone with authority or apparent authority who actually enters into the agreement.
How may applications under cpr part 84.3 (enforcement by taking control of goods) be made?
- In accordance with the part 23 procedure.
Where there are no pre-existing proceedings, issued in the county court.
Where there are pre-existing proceedings, to either the high court or county court in accordance with rule 23.2
Where can an attachment of earnings order be made?
To secure payments under a high court or county court judgment where the debt or amount remaining payable is not less than £50, or payments under an administration order.
The majority are made in the county court as high court has a very limited power (for maintenance orders made in the high court) and there is a centralised system for collection.
Very effective where the debtor is in employment with sufficient earnings.
What does the creditor need to do where they want an attachment of earnings order to be made?
Complete the request in form n337 and pay the prescribed fee. The court does the rest.
Issued in the CNBC.
Must attach a certificate of the money remaining due under the judgment and that the whole or party of any instalment remains unpaid.
Where it is sought to enforce an order of the magistrates’ court, the applicant must also file with the application:
1. A certified copy of the order; and
2. A witness statement certifying the amount due or, if the payments are required to be made to a designated officer, from the designated officer to the same effect
Where must an application for attachment of earnings order be made?
In the civil national business centre
What is the effect of an attachment of earnings order?
It operates as an instruction to an employer:
1. To make periodical deductions from the debtor’s earnings
2. At such times as the order may require or as the court may allow, to pay the amounts deducted to the collecting officer of the court.
What shall the order for an attachment of earnings specify?
- The normal deduction rate, ie the rate expressed per week or some other period at which the courts thinks reasonable; and
- The protected earnings rate, i.e. the amount of which the court will not go below.
(3)An attachment of earnings order shall contain prescribed particulars enabling the debtor to be identified by the employer.
(4)Except where it is made to secure maintenance payments, the order shall specify the whole amount payable under the relevant adjudication (or so much of that amount as remains unpaid), including any relevant costs.
What should the lawyer ensure once a settlement has been reached (in terms of recording)?
That it is recorded, the client understands and assents, it is enforceable, and it is recorded.
The form used can vary.
For example, it may be in writing.
Oral agreements may be given, though a lot of the time people say it is ‘subject to contract’ to enable it to be properly written down and agreed.
Most times mediation agreements often include terms that any settlement will only be binding if made in writing.
In these cases, the parties are only bound when the contemplated document is signed.
A subject to contract clause will apply unless the parties have expressly or impliedly agreed to vary or waive it or if there is an effective estoppel or collateral contract. Oral agreements to vary can be prevented by including a clause that the mediation agreement can be in writing.
What should the lawyer consider where the settlement reached is explained as being ‘in full and final settlement’?
That this is what the parties want
That the dispute being settled is adequately identified. Matter of construction
What may happen where a settlement is not expressed as in full and final settlement?
It may be interpreted as not so, and therefore either party could reinstitute proceedings.
How may settlements be recorded in proceedings?
- In the normal way – written agreement, oral, e.c.t
- May also be judgment for an agreed sum together with costs. Often used at door of court.
- Judgment for an agreed sum and costs subject to stay of exception while defendant pays instalments
- Informing the court the case has been settled upon terms endorsed on counsel’s briefs
- Informing the court the case has been settled on terms recorded in a contract
- Entry of a consent order (more appropriate for non-monetary matters)
- Consent order with stay
- Consent order providing for no order save as to costs but setting out the agreed terms in recitals (non money claims)
- Recording the agreement in a Tomlin order
Just bc settlement is reached after issue does not mean they have to be recorded in a court order.
However, once litigation has commenced it is important to agree how to dispose of them.
How can settlements be enforced?
- Essentially, in arbitration the enforcement will often be through registering it. As a judgment
- In construction industry adjudications, it may be enforced through bringing court proceedings and entering judgment
- In non-adjudicative procedures, if the parties have resolved their dispute they would sue on the contract they have entered by settling.
- They may also agree to record all or party of the compromise in a judgment or order and then enforce it
- Settlements in acas employment conciliations are enforcement in the county court as if they were county court orders
- Failure to comply with binding decisions in expert determinations and other processes are enforced by suiting on the contract.
