Enforcement

Question 1

What are the Main Methods of Financially Investigating a Debtor?

Answer 1

• Enquiry Agents.
• Self-Investigation, including.
  • Client Information.
  • Company Searches.
  • Land Charges Searches.
  • Land Registry Applications.
  • Individual Solvency Register.
  • Attachment of Earnings Order Index.
  • Register of Judgments, Orders, Fines.

Question 2

What is the Lookback of the Registery of Judgments, Orders, and Fines?

Answer 2

• 6 years.
• It includes the Debtor’s name, address, and outstanding Debt(s).
• Following satisfaction, Debts can be removed upon request within 1 month, but the Judgment itself will remain.

Question 3

What may the Creditor request of the Court by way of Financial Investigation into the Debtor?

Answer 3

• An Order to Obtain Information from the Judgment Debtor, specifically to guage its capacity to repay the Judgment Debt.
• This is most appropriate when little is known about is finances.

Question 4

What is the Procedure for an Order to Obtain Information from the Judgment Debtor?

Answer 4

1 — Application Form (Optionally Without Notice):

• Form N316 for questioning an Individuals.
• Form N316A for questioning Corporate Officers.

2 —Issuance:

• The Order is Personally Served on the Debtor at least 14 days before the Hearing, unless otherwise stated.
• The Order must contain a Penal Notice warning of Contempt of Court, Fines, Imprisonment, or Asset Seizure for Non-Compliance.
  • Non-Compliance will, in fact, lead to a Committal Order, which bears these consequence.

3 —Hearing:

• The Debtor is sworn, provides any Documents referred to in the Order, and answer questions on its finances.

Question 5

What are the Main Methods of Enforcement?

Answer 5

Writ or Warrant of Control:

• This authorises Enforcement Agents to take control of the Debtor’s Goods for Sale.
• Writs are in the County Court, Warrants are in the High Court.

Third Party Debt Order:

• This Freezes and Seize Funds owed to the Debtor by Third Parties in satisfaction of the Debt.
• The Court then Orders the Third Parties to pay the Creditor directly.

Charging Order:

• This Secures the Debt against the Debtor’s Property, thus preventing Asset Sales without paying the Creditor.

Attachment of Earnings Order:

• This deduct sums directly from the Debtor’s wages, and as such, is limited to the Employed.
• Applicable for Debts of at least £50.
• Only available in the County Court.

Injunctions and Specific Performance (Non-Monetary).

If a Method exceeds a Court’s powers, the Issue may be transferred to a High Court Enforcement Officer.

Insolvency Proceedings are a Last Resort.

Question 6

Which Goods are Outside the Scope of a Writ or Warrant of Control?

Answer 6

• Trade Tools (Aggregately): Up to £1,350.
• Basic Domestic Items: Clothing, bedding, furniture, and essential household items.

Question 7

What is the Procedure for Enforcing with a Writ or Warrant of Control?

Answer 7

1 — Pre-Entry Notice:

• The Enforcement Officer must give at least 7 Clear Days’ notice before Seizing Goods.
• From then, the Officer has 12 months from the Date of Notice to Seize.

2 — Seizing Goods:

• The Officer may use reasonable force to enter the Premises, usually between 06:00 and 21:00.
• The Officer cannot enter if only a child or vulnerable person is present.

3 — Post-Entry Notice:

• The Officer must give Notice detailing its actions and the Goods Seized.

4 — Auction:

• The Goods are sold at Public Auction for the best reasonable price.
• The Judgment Debt and Enforcement Costs are paid to the Creditor, and any Surplus is returned to the Debtor.

Question 8

Regarding Writs or Warrants for Control, what is a Controlled Goods Agreement?

Answer 8

An Agreement allowing the Debtor to retain custody and use of the Goods pending payment.

Question 9

Which Assets are Outside the Scope of a Third Party Debt Order?

Answer 9

Joint Bank Accounts with the Debtor’s S/CP.

Question 10

What is the Procedure for Enforcing with a Third Party Debt Order?

Answer 10

1 — Application and Service:

• Apply for a Third Party Debt Order, usually Without Notice.
• Serve the Order on the Third Party to payments of its Debt to the Debtor.

2 — On-Notice Hearing and Final Order:

• The Debtor, and Third Party, may make representations regarding the Order.
• Thereafter, if unconvinced, the Court will issue the Final Order.

Question 11

What is the Procedure for Enforcing with a Charging Order?

Answer 11

1 — Application and Service:

• Apply for a Third Party Debt Order, usually Without Notice.
• Serve the Order on the Debtor, any Co-Owners, and any Relevant Third Parties to assert a Security Interest.

2 — On-Notice Hearing and Final Order:

• The Debtor, and Third Party, may make representations regarding the Order.
• Thereafter, if unconvinced, the Court will issue the Final Order, and often, an Order of Sale as well.

Question 12

What is the Procedure for Enforcing with an Attachement of Earnings Order?

Answer 12

1 —Application and Service:

• The Creditor files a standard form certifying the outstanding Debt, with a fee.
• The Creditor Serves the Application and Reply Forms on the Debtor, which it must complete and return.

2 — Issuance:

• The Court may issue the Order without Parties’ attendance.

3 — Notice and Enforcement:

• If granted, the Order is Served on the Debtor and its Employer.
• The Employer deducts the specified amounts and pays them to the Court, which forwards them to the Creditor.

Question 13

What is the Procedure for Initiating Insolvency Proceedings?

Answer 13

1 —Statutory Demand (Optional):

• Serve a Statutory Demand on the Debtor.
• Non-Payment for 21 days indicates Insolvency.

2 —Insolvency Petition:

• File the relevant Petition at the Debtor’s Local Court.
• For a Winding-Up Petition, the Debt must exceed £750.
• For a Bankruptcy Petition, the Debt must exceed £5,000.

3 —Service and Hearing:

• Serve the Petition on the Debor and attend the Court Hearing on the Petition.

4 —Outcome:

• If granted, the Debtor’s assets are liquidated and distributed among its Creditors, according to Statute.

Question 14

Which Court must Enforce which Type of Claim?

Answer 14

High Court:

• Any Claim of £5,000 or more.

County Court:

• Any Claim less than £600.
• Any Claim arising from the Consumer Credit Act 1974.

Question 15

What are the Implications of Enforcing English Judgments Abroad?

Answer 15

• Conventions and Treaties: The UK is a signatory to several international agreements facilitating Reciprocal Enforcement.
• Registration System: Judgments can often be registered in Foreign Courts, allowing Enforcement as if they were local Judgments.

In any case, Advice from Local Counsel is necessary.

Question 16

What is the Procedure for Enforcing a Judgment Abroad?

Answer 16

1 —Identify the Applicable Regime

• Determine the Foreign Jurisdiction and whether Reciprocal Enforcement applies.

2 —Apply for a Certified Copy of the Judgment:

• Obtain a Certified Copy of the High Court or County Court Judgment, often Without Notice to the Debtor.
• This requires written Supporting Evidence.

2.1 —Supporting Evidence for the Certified Copy:

• Judgment for Judgment: Explain the basis on which the judgment was obtained.
• Jurisdictional Objections: State whether the Defendant objected to the Court’s jurisdiction.
• Service Confirmation: Show that the Judgment has been properly served.
• Appeal Information: Provide details about any Appeals, including expiration dates for Appealing.
• Interest on Judgment: State whether Interest is recoverable and on what Terms.

3 —Submission to Foreign Courts:

• Use the Certified Copy to proceed under the relevant International Regimes or Local Laws.
• Employ Local Counsel to assist.

Question 17

What are the Implications of Enforcing Foreign Judgments in England and Wales?

Answer 17

Application of Reciprocal Enforcement:

• Default thereto.

Non-Application of Reciprocal Enforcement:

• The Foreign Judgment is treated as a Debt and Proceedings for Non-Payment are initiated accordingly.
• The Foreign Judgment must be final and conclusive, and there must not be Appeals pending in the Foreign Court.