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Dispute Resolution > Enforcement > Flashcards

Enforcement Flashcards

1
Q

What are enforcement proceedings?

A

Steps taken post-judgement by successful party to obtain payment from unsuccessful party (judgement debtor)

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2
Q

At what point in litigation should the opponent’s means (ability to pay) be considered?

A

Before any action is taken at all in litigation

Inc:
* Opponent’s financial status
* What if they can pay but won;t
* If their assets are located abroad/difficult to enforce against

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3
Q

How can the judgement creditor find out information about the debtor’s assets?

Judgement debtor = someone who owes under the judgement

A

An order to obtain information from the judgement debtor under CPR 71

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4
Q

What is the oral examination of a judgement debtor under CPR 71?

As part of an order to obtain information from the judgement debtor

A

Can require judgement debtor (officer of debtor if they are a company) to attend court and provide information about judgement debtor’s means

Must produce documents referred to in order and answer Qs under oath

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5
Q

How is the procedure for an order to obtain information from judgement debtor different for individual and officer of a company?

A
  • Form N316 used for individual judgement debtor
  • Form N316A used for officer of company
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6
Q

What can application for order to obtain information (oral examination) be made without?

A

Notice

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7
Q

What must an order to obtain information contain to incentivise debtor to attend hearing?

Under CPR 71 oral examination

A

A penal notice - if judgement debtor fails to attend hearing/refuses to comply a judge may make an order for their committal

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8
Q

When must an order to obtain information from the judgement debtor be served personally on them?

Re oral examination

A

Not less than 14 days before the hearing

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9
Q

Is the judgement creditor limited as to what method of enforcement they can use?

Can they only use 1?

A

No - can use more than one method at any time and keep going until judgement debt fully paid up

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10
Q

When would proceedings need to be transferred to a different court for the purposes of enforcement?

A

Where the method is only available in one particular court

  • Attachment of earnings only available in County Court
  • Using a High Court Enforcement Officer to take control and sell goods only available in High Court
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11
Q

What sums can only be enforced in each court?

A
  • £5,000 or more = High Court
  • Less than £600 = County Court

Between = either

Would have to transfer if in one limit

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12
Q

What starts enforcement action and when can it start?

A
  • Judgement creditor must take steps to enforce judgement (court does not automatically take enforcement)
  • Debt must be due before proceedings can start (time for payment must have elapsed)

I.e. cannot start before 14 days are up!

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13
Q

Can a judgement creditor recover more than is due to it under the judgement?

A

No!

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14
Q

What may be used to investigate the debtor’s means and when should they be updated?

A
  • Company search
  • Enquiry agent
  • Land Registry official copies
  • Searched against relevant registers
    Should be updated/repeated at end of action, post-judgement

To work out most effective method of enforcement

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15
Q

What can enquiry agents (essentially PIs) do? What is the problem of misconduct here?

A
  • Procure extensive information on individuals/companies on request
  • Any misconduct will be imputed to solicitor

Are expensive - must use reputable firm

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16
Q

What can a company search identify?

A
  • General solvency
  • Company’s assets
  • Whether assets are charged
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17
Q

What registers can be useful when considering enforcement proceedings?

A
  • Land Charges Registry - for restrictions on use of property, work out equity in property and whether order for sale possible
  • Individual Insolvency Regsiter - lists people made bankrupt/have Debt Relief Orders etc. which might restrict how assets can be distributed
  • Attachment of Earnings Order Index - shows debtors against whom there are attachments of earnings orders in force
  • Register of Judgements, Orders and Fines - all County/High Court judgements are entered on this register and can remain registered for 6 years
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18
Q

Will judgements always remain on the Register of Judgements, Orders and Fines?

A
  • Satisfied within 1 month = entry may be cancelled at debtor’s request
  • Satisfied after 1 month = judgement will remain on register
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19
Q

How is the Register of Judgements, Orders and Fines useful?

A

Can see if debtor already has unsatisfied judgements registered against them adnd who holds them (may impact decision)

Shows total amount of outstanding debt

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20
Q

What types of opponent should be (not) considered especially?

A
  • Legally-aided opponent = will not recover its costs and maybe not damages
  • Insured opponent = may be entitled to be indemnified by insurance company for some/all damages and/or costs to be paid to client (payment more easily forthcoming)
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21
Q

What is the dissipation of assets and how can it be prevented?

A

The disposal/movement of assets in anticipation of judgement - can be prevented using freezing injunction

22
Q

Can a judgement from an E+W court be enforced in a foreign jurisdiction (for enforcement purposes)?

E.g. Judgement debtor has assets abroad

A

If part of reciprocal regime where judgement can be enforced in other country - judgements of one country can be registered in another country and then treated as if they were judgements of that country for enforcement purposes

23
Q

What if no relevant regime applies and you want to enforce a) an English judgement abroad or b) a foreign judgement in E+W?

A

a) Governed by common law in country in which you are seeking to enforce the judgement
b) Must obtain a judgement from E+W - done by treating foreign judgement as a debt, issuing proceedings for non-payment of debt and then applying for summary judgement (only if no appeal in foreign court)

24
Q

What are the procedural steps for enforcing a High/County Court judgement in foreign countries?

A
  1. Judgement creditor must apply (without notice) for a certified copy of the judgement
  2. Application must be supported by **written evidence **exhibiting claim form, statements of case and evidence served on D

Once certificate obtained - follow procedure in applicable regime or common law to enforce judgement abroad

25
Q

What must this evidence show?

Of enforcing High/County judgement in other countries

A
  • Grounds on which judgement obtained
  • Whether D objected to jurisdiction
  • That judgement has been served
  • Appeal details (e.g. date on which time for appealing expired)
  • Whether interest recoverable on judgement
26
Q

What are the most common methods of enforcement used in relation to money judgements in E+W?

A
  • Taking control of goods
  • Charging orders
  • Third party debt orders
  • Attachment of earnings orders
  • Insolvency proceedings
27
Q

What does the taking control of goods (TCG) allow?

A

Enforcement officer (EO) can seize judgement debtor’s goods and sell them to use proceeds to satisfy judgement debt and expenses

Application in accordance with standard interim application as modified

28
Q

What 2 classes of goods belonging to judgement debtor can TCG not be used against?

A
  • Tools of judgement debtor’s trade (only to aggregate value of £1,350)
  • Basic domestic items e.g. clothing, bedding
29
Q

What court must be used for TCG depending on amount?

A
  • Up to £600 - must use County
  • Between £600 and £5,000 - can use either High or County
  • More than £5,000 - must use High
30
Q

What court documents must be issued for a TCG?

A
  • High Court = writ of control
  • County Court = warrant of control
31
Q

What will the writ/warrant of control contain?

Addressed to EO

A
  • Amount of outstanding debt to be recovered
  • Fixed costs amount for costs of TCG (inc. court fee)

EO can take charges out of proceeds of goods seized and sold!

32
Q

What is the 3 stage process of TCG after writ/warrant of control delivered?

A
  1. Giving notice of enforcement to judgement debtor
  2. Entering premises and securing goods
  3. Sale of goods
33
Q

What are the time limits for giving notice of TCG?

A
  • Notice must be given at least 7 clear days before any attempt to take control
  • Has 12 months from giving notice in which to do so
34
Q

What are the rules re entering premises and securing goods in TCG?

A
  • Can use reasonable force to enter (not against persons)
  • Must be between 6am-9pm
  • Cannot be on premises where child/vulnerable person is only one present
  • EO must provide notice after entry giving details of what is happening
35
Q

What is a controlled goods agreement?

A

Last chance for judgement debtor to pay up - debtor can retain custody of goods despite EO taking control of them pending payment of debt

36
Q

What is a third party debt order and when is it appropriate?

A
  • Upon application - court may make order requiring a third party to pay judgement creditor some/all of debt owed to judgement debtor (i.e. intercepts money)
  • Appropriate where debt due/accruing due to debtor by a third party (inc bank) within jurisdiction

E.g. any money debtor has in bank account and trade debts owed to them

37
Q

What can a third party debt order not be used against?

A

A bank account in the joint names of debtor and spouse

38
Q

What is the third party required to do in a third party costs order?

Do they have to?

A
  • Search for and disclose information to court and judgement creditor
  • Can object to order by filing and serving written evidence stating grounds for objection
39
Q

What is the procedure for a third party costs order?

A
  1. Interim order to be made without notice
  2. First served on third party (to prevent further payments to debtor)
  3. Then served on judgement debtor followed by on notice hearing where debtor is heard
  4. Court decides whether to make final order requiring third party to pay debt to creditor directly/discharge interim order
40
Q

What is a charging order on land (or certain securities)?

A

Charge taken over land/specified assets that does not produce any money itself but secures a judgement debt

41
Q

How long will a charging order remain in place?

A
  • Until property is sold by debtor (proceeds used to pay debt and charge removed)
  • Until judgement creditor forces sale process after subsequent application for order of sale

Lengthy process!

42
Q

What are the applications that must be made for a charging order?

A
  1. Interim charging order
  2. Final charging order
43
Q

When is an attachment of earnings order available and how does it work?

A
  • Only in County Court where judgement debt/oustanding debt is not less than £50
  • Judgement debtor’s salary will have deductions made by employer which will be paid on to court for onward transmission to judgement creditor
44
Q

What is the procedure for attachment of earnings?

A
  1. Creditor files application on standard form and specifies amount of judgement outstanding (and pays fee)
  2. Application and reply form served on debtor who should return reply form to court
  3. Court may make an order (without either party attending) attaching a proportion of judgement debtor’s earnings
  4. Order served on debtor and judgement debtor’s employer (required to deduct and transmit)
45
Q

What problems can arise with attachment of earnings?

A
  • Debtor changes jobs whilst order being obtained (creditor needs to start again)
  • Judgement debtor may choose not to reply return form and cause delay (can be imprisoned after further hearings)
46
Q

When can a petition for bankruptcy or petition to wind up company be issued?

Amounts

A
  • Petition for bankruptcy against individual - judgement debt against them is more then £5,000
  • Petition to wind up company - judgement debt against it is more than £750
47
Q

What is the insolvency procedure?

A
  1. Petition issued, presented to local court and served on judgement debtor
  2. Court fixes time for hearing of petition - debtor notified of date to attend hearing to decide whether bankruptcy/winding up order should be made against them
  3. If they do not attend = order very likely to be made
  4. Debtor’s assets distributed to creditors according to rules
48
Q

Why is it important to know what other debts judgement debtor has for insolvency proceedings?

A

Client will not be ‘preferred’; may end up in queue sharing assets in pari passu

49
Q

What is a statutory demand and why is it effective?

A

If debt remains unpaid for period of 21 days after service of demand, debtor at risk of court presuming he/it is unable to pay debts and therefore insolvent - makes bankruptcy/winding up petition more difficult to resist

Can be used before petition issued - low cost and effective

The threat of being made bankrupt often incentive enough

50
Q
A

Dispute Resolution (20 decks)

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