Enforcement

Question 1

How could the claimant investigate the debtors means?

Answer 1

Instruct an enquiry agent; and/or

Apply to the court for an order to obtain information from the debtor.

Question 2

What is the court process of investigating the debtors means (Part 71)?

Answer 2

Creditor files notice at the court;

Notice is served on debtor;

Standard questions are asked of the debtors means. Creditor may request additional ones.

Question 3

What are the four most common methods of enforcement?

Answer 3

(i) Taking control of goods;

(ii) Charging order;

(iii) Third party debt order;

(iv) Attachment of earnings order.

Question 4

What is the process of ‘Taking control of goods’?

Answer 4

Enforcement officer uses reasonable force to enter business premises, court order needed for homes.

7 day notice served on debtor before taking control of goods with a 12 month period thereafter allowed to turn up and take the property.

Question 5

What may be seized upon a taking control of goods order? What is exempt?

Answer 5

Standard contents may be seized, but basic necessities e.g. bed, clothes, equipment for work and study (up to £1350) are exempt.

Question 6

What are the differences between a taking control of goods order in the country court or high court? When should the creditor choose either court?

Answer 6

County court: Less than £600 - Warrant of control;

High court: More than £5000 - Writ of control.

Anything between £600-5000 is the choice of the creditor.

Question 7

What are the advantages and disadvantages of a taking control of goods order?

Answer 7

• Cannot force entry into a debtors home, can refuse entry;
• Logistical difficulties (e.g. debtor may have hidden goods);
• Potentially low re-sale value of goods;

+ Writ of control usually results in a return;
+ Can use reasonable force to break into business premises;

Question 8

What is the procedure for a TCOG order in the HC?

Answer 8

(A) 2x Writ of control and request delivered to court with the judgement;

(B) Court seals the writ and returns one to creditor;

(C) Creditor sends this to the enforcement officer of the county where the debtor resides

Question 9

What is the procedure for a TCOG order in the County Court?

Answer 9

(A) Creditor files the form via warrant of control;

(B) Warrant executed by district enforcement officer

Question 10

What is a charging order?

Answer 10

The creditor effectively becomes a mortgagee of the asset (stocks, land, etc) and can apply for an order of sale.

Question 11

What are the three stages of a charging order?

Answer 11

(1) Interim charging order - creditor files a notice with details of the debt;

(2) final charging order - debtor has 28 days to dispute;

(3) order for sale - if the interim order is final, creditor can request an order for sale.

Question 12

What are the advantages and disadvantages of a charging order?

Answer 12

+ useful way of enforcing judgement against debtors with no liquid assets;
+ Secures the judgement debt;
+ May encourage debtor to make efforts towards settling the debt;

• Not appropriate if there are other charges over property;
• Payment may not be received for many years, e.g. if it’s a family home

Question 13

What is a third party debt order?

Answer 13

If the debtor is owed money, e.g. by a bank or via trade debts, the court can make an order for the debt to be paid to the creditor directly.

Question 14

What’s the procedure for a third party debt order?

Answer 14

(a) creditor applies to court without notice;

(b) judge freezes the account/funds of the third party;

(c) court considers any objections, if none, order is made final.

Question 15

What are the advantages and disadvantages of a third party debt order?

Answer 15

+ Element of surprise - debtor may not be aware;
- Debtor may move funds around before the judgement is made;
- Innapropriate if there are a lot of small debtors

Question 16

What is an attachment of earnings order?

Answer 16

Debtor’s employer makes deductions from the debtor’s earnings and pays them to court.

Question 17

What is the process for an attachment of earnings order?

Answer 17

(a) creditor applies and the court informs the debtor of the application;
(b) only where there is insufficient information will the matter be referred to a judge;
(c) order sent to parties and to the debtor’s employer - only if either party objects will another hearing be heard

Question 18

What are the advantages and disadvantages of an attachment of earnings order?

Answer 18

+ Effective means of obtaining payment provided the debtor is in work and not self-employed;

• Creditor has to repeat the process if debtor moves jobs;
• Court may order a very low value instalment, meaning the debt will take a long time to be satisfied.

Question 19

How does a creditor enforce a judgement debt in SC and NI?

Answer 19

(1) obtain a certificate confirming the date of the judgement;

(2) make an application to register the judgement within 6 months

Question 20

How does a creditor enforce a judgement debt in the commonwealth?

Answer 20

Judgement must be final and registered within 12 months for HC judgments and 6 years for CC judgments .

Question 21

How does a creditor enforce a judgement debt when the Hague Convention applies?

Answer 21

If the Hague Convention applies, the judgement will be enforced and recognised in that country.