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Dispute Resolution > Enforcement > Flashcards

Enforcement Flashcards

1
Q

how can a judgment debtor’s means be investigated?

A

Can you one or both methods:
o Instruct an inquiry agent - useful if JD might be untruthful about assets
o Obtain an order for information

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2
Q

give a summary of an order for information

A

JD takes an oath and is question about their / the company’s finances in court

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3
Q

what is the procedure to obtain an order for information?

A
  1. Judgment creditor (JC) files an N244 setting out: JD’s name and address, details of the judgment to be enforced (inc. monies owed) and any documents they want JD to produce
  2. Normally personally served on JD who can then request payment of reasonable travel expenses within 7 days
  3. Hearing usually takes place in CC where JD lives or carries on business.
    * Examination conducted by an officer of the court or a judge if requested by JC
    * Standard questions for individuals i.e. what is your take home pay? employer details? Do they own a home and ownership details? and businesses i.e. current contracts? Any cash? Debts due? Ownership?
    * JC can ask additional questions
    * If JD is a company a director must attend
  4. Court records responses and JD is asked to read and sign them
  5. If JD does not attend, the court can make a committal order (i.e. an order for contempt of court). This will be suspended if the JD complies with the order.
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4
Q

re: order for information

what must be filed?

A

Judgment creditor (JC) files an N244 setting out: JD’s name and address, details of the judgment to be enforced (inc. monies owed) and any documents they want JD to produce

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5
Q

re: order for information

who conducts the hearing?

A
  • Examination conducted by an officer of the court or a judge if requested by JC
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5
Q

re: order for information

what can JD request?

A

payment of reasonable travel expenses within 7 days

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6
Q

re: order for information

what questions are asked?

A
  • Standard questions for individuals i.e. what is your take home pay? employer details? Do they own a home and ownership details? and businesses i.e. current contracts? Any cash? Debts due? Ownership?
  • JC can ask additional questions
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7
Q

re: order for information

who attends if D is a company?

A
  • If JD is a company a director must attend
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8
Q

re: order for information

what happens if JD does not attend?

A
  1. If JD does not attend, the court can make a committal order (i.e. an order for contempt of court). This will be suspended if the JD complies with the order.
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9
Q

what are the enforcement methods?

A
  1. taking control of goods
  2. charging orders
  3. third party debt orders
  4. attachment of earnings
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10
Q

give a summary of taking control of goods

A

seizure and sale of JDs goods which are then sold at public auction. The debt and costs are deducted and surplus is given back to JD.

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11
Q

re: taking control of goods

when is the court’s permission required?

A
  • If there is an attachment of earnings order in place, JC will need permission from the court to use this method at the same time
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12
Q

re: taking control of goods

what is needed to enforce the judgment?

A
  • Warrant (CC) / writ (HC) of control needed to enforce judgment
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13
Q

re: taking control of goods

when will a matter need to be transferred?

A
  • If the case started in the CC and is to be enforced by the HC, the matter will need to be transferred to the HC
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14
Q

re: taking control of goods

explain the jurisdiction of each court

A

Judgment court l value l enforcing court
1. CC > less than £600 > CC
2. CC > £600 - £5k > CC or HC
3. CC > over £5k > HC
4. HC > any > HC

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15
Q

re: taking control of goods

what is the procedure in the CC?

A
  1. JC files the form of request for a warrant of control at the CC closest to the JD
  2. The warrant is executed by the County Court Bailiff
16
Q

re: taking control of goods

what is the procedure in the HC?

A
  1. JC files: praecipe, 2 copies of the writ of control and judgment
  2. The court seals the writ and returns a copy to the JC
  3. JC sends this to the HCEA for the county closest to the JD to be executed by a High Court Enforcement Officer
17
Q

re: taking control of goods

what powers do enforcement agents have and not have?

A
  • Enforcement agents cannot force entry to a JD’s home, but they can use reasonable force to enter business premises if they think the goods are inside and there is no living accommodation attached
18
Q

re: taking control of goods

can jointly owned items be seized?

A
  • Jointly owned items can be seized but half of the proceeds of sale must be paid to the joint owner
19
Q

re: taking control of goods

what items are usually seized?

A
  • Usual items seized: cars, computers, cash, insurance bonds, share certificate
20
Q

re: taking control of goods

what items are exempt from seizure?

A

These items owned by individuals (i.e. not partnerships or companies) are exempt from seizure:
o Items for JD’s basic need i.e. clothes, bedding, furniture; and
o Items for JD’s work or study (subject to an aggregate value of £1,350) i.e. tools, vehicles, computers

21
Q

re: taking control of goods

what items cannot be seized?

A
  • Goods belonging solely to another or subject to a hire purchase agreement cannot be seized
22
Q

re: taking control of goods

when is a controlled goods agreement used? What is it?

A

used if JD needs more time to pay

JD acknowledges the agent is taking control of the goods, but they are permitted to retain custody of them for a few days. JD agreed not to remove or dispose of the goods before the debt is paid.

23
Q

re: charging orders

what are the advantages?

A

o Good where there are no liquid assets
o JC will become a secured creditor
o Interest will accrue, so it might encourage JD to pay

24
Q

re: charging orders

what is the disadvantage?

A

JC only gets paid upon sale & after other secured creditors

25
Q

re: charging orders

what can this be obtained over?

A
  • CO can be on land or securities
26
Q

re: charging orders

explain charging orders taken over land

A

if JD owns land, the CO is against the land. If the land is jointly owned, the CO is against their beneficial interest (not the land itself)

27
Q

re: charging orders

explain charing orders taken over securities

A

CO can be obtained on JD’s beneficial interest in UK government stock, shares and unit trusts

28
Q

re: charging orders

what is the procedure to obtain a charging order over land?

A

This is procedure for land but it would be similar for securities
1. JC files relevant application form setting out: details of judgment, details of land / securities, name and address of any other person affected (i.e. someone with a priority charge) and draft interim order. Application filed with:
* Debt is less than £5k  CNBC
* Debt is more than £5k  CNBC or the HC
2. Application is usually dealt with on paper by a court officer, but they may refer it to a judge for consideration
3. ICO, application and supporting docs must be served by JC within 21 days
4. JD has 14 days to request the court officer’s decisions is reviewed by a judge
5. If anyone objects to the making of a final charging order (FCO), they must f&s written evidence stating grounds of objections within 21 days of service of ICO
* If an objection is received the case will be transferred to JD’s home court
6. At the hearing, the court can: make an FCO; discharge the ICO; or direct a trial of any issues between parties
* A CO for securities will usually provide for the charge to extend on any interest or dividend payable
* A CO on land will need to be registered with either: Land Registry if the land is registered or the Land Charges Department if the land is unregistered
7. To enforce CO, JC will need to commence order for sale proceedings

29
Q

re: third party debt orders

what is this?

A
  • Third party owes money to JD. The third party is required to pay JC the debt and costs. The TPDO can be for all or part of the money owed.
30
Q

re: third party debt orders

when is this suitable?

A
  • Suitable is JD is in credit with a bank or building society or owed a trade debt
  • Can only be used where JD owns the money solely and beneficially
31
Q

re: third party debt orders

what is the procedure?

A
  1. Application setting out details of where money is held i.e. name, branch and account number is filed without notice in the court which made the judgment (unless case has been transferred).
  2. Interim order is made. This freezes the money held by the 3rd party. A hearing is listed for no less than 28 days later.
  3. At the hearing, the court will consider any objections. An order is made unless there is good reason not to do so i.e. it will cause financial hardship.
32
Q

re: attachment of earnings

what is it?

A
  • JD’s employer pays contributions from their earnings to the court
33
Q

re: attachment of earnings

what is the drawback?

A
  • JD must be employed (not self-employed). If they lose their job or move, payments will stop and JC will need to start the process again
34
Q

re: attachment of earnings

what is the procedure?

A
  1. Application must be made to the CNBC (HC has no power to order these, proceedings in the HC will need to be transferred)
  2. Court informs JD of the application requiring them to either: pay the money due or file a statement of means setting out their income and outgoings
  3. Court officer makes the order and determines the deduction using guidelines. If there is insufficient information, the matter will be referred to a judge.
    * The order will specify the deduction rate and protected earnings rate (i.e. the amount to court considers reasonable for JD to live on). Therefore, if JD’s earnings are less than or equal to the protected earnings rate one week, JC will not be paid.
  4. Order is sent to parties and JD’s employer. JD’s employer can deduct a small amount for admin costs.
  5. If either party objects to the order/its terms, they can apply for a matter to be reconsidered by a DJ at a hearing.
35
Q

how are judgments enforced in Scotland and Northern Ireland?

A
  1. JC will need to obtain a certificate confirming the date of judgement, sum of award, details of interest & costs.
  2. Make an application to Scottish / Northern Irish Court with evidence to register the judgment in 6 months
  3. If approved, the judgment will be registered and enforced using local methods
36
Q

how are judgments enforced in Commonwealth countries?

A

i.e. Australia, Pakistan, Jersey (non-exhaustive list)

Judgments can be enforced if they are final and registered within:
o CC judgments 6 years & HC judgments 12 months

JC loses the right to enforce outside the jurisdiction if it is not registered

37
Q

how are judgments enforced in other countries (i.e. not commonwealth countries)?

A
  • Countries party to Hague Convention - judgment will be recognised and enforced in that country
  • Other countries - national law of that country applies

Dispute Resolution (13 decks)

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