Enforcement Flashcards
What are enforcement proceedings
Steps taken post judgment by the successful party to obtain payment from the unsuccessful party (judgment debtor)
Investigating opponents means
Should consider means:
- before
- during
- repeat post judgment
Order to obtain information from the judgment debtor
Order requiring debtor or rep (if company) to provide information about the debtor’s means or any matter which is necessary to enforce the judgment.
Known as ‘oral examination of a debtor’.
Will be carried out by a court officer or a judge if deemed necessary.
Order must be served personally not less than 14 days before the hearing. And will always include a penal notice - judgment debtor can be imprisoned or fined if they do not comply with the order to attend court and answer questions.
Debtor then attends court and produces any documents referred to in the order and answer questions on oath.
Main methods of enforcement
- Writs/warrants of control
- Third party debt orders
- Charging order
- Attachment of earnings orders
Note: some enforcement proceedings are only available in certain courts so you may need to have the proceedings transferred to a different court for enforcement. e.g. taking control of goods for sums of £5000 or more is only available through High Court but if sum is less than £600 or regulated by Consumer Credit Act 1974 must be enforced in County Court. (amounts in between £5000 and £600 can be in either court)
Creditor must take steps to enforce the judgment using one or a combination of the different methods of enforcement available.
Investigating debtors means
- Company search
- applied for official copies at land registry
- searched against other registers
- instructed an enquiry agent to report
Enquiry agent
Investigate the compnay or individual upon request.
Usually expensive - make sure to use reputable firm.
Company searches
Reveal extensive financial information about:
- company’s general solvency
- company’s assets
- whether those assets are charged
Registers
- Land charges register
- restrictions or prohibitions on the use of property or charges
- find out if any equity in the property or possible to force a sale - Individual insolvency register
- lists people who have been made bankrupt, or have debt relief orders or IVAs in place.
- restrict how assets can be distributed so will impact the enforcement methods - Attachment of earnings order index
- index shows the debtors against whom there are attachment of earnings orders in force - Register of judgments, orders and fines
- all county court judgments for past 6 years (if paid within one month entry will be cancelled on request)
- outstanding high court judgments
- will be able to see if debtor already has any unsatisfied judgments registered against them and who holds those judgements
Features to consider of the opponent
- Legally aided opponent: client will not recover costs and may not recover damages
- Dissipation of assets: opponent may have disposed or moved assets in anticipation of judgment - can prevent with freezing injunction
- Insured opponent: insurance means that the opponent may be entitled to be indemnified for some or all of the damages/costs - compulsory for certain risks: employer’s liability, motor insurance, professional insurance.
order to obtain information
Once judgment has been obtained it is possible to use the procedure to involve the court in obtaining information directly (CPR 71 - discussed earlier)
Enforcement in other jurisdictions
Assets which are abroad - may be necessary to take steps to enforce judgment of English court in foreign jurisdiction (arbitration may make this easier)
Foreign court judgement - it will be necessary to use English courts to facilitate this, usually done by treating the judgment as a debt, issuing the proceedings for non-payment and then applying for summary judgement.
Evidence:
- identify grounds on which judgment was obtained
- state whether defendant objected to jurisdiction
- show judgement has been served
- state appeal details
- state whether interest is recoverable
Taking control of goods orders
- allows enforcement officers to seize a judgement debtor’s goods and sell them so proceeds can satisfy debt.
- good must be owned by judgment debtor and that there are no third party claims to the goods from anyone else
- EO is also able to take their charges out of the good seized
Exempt goods:
- tools of judgement debtor’s trade (max £1,350)
- basic domestic items
Taking control of goods order which court
Up to £600 - County Court
£600-£5000 - Either court
£5000+ - High Court
How to apply for TCG
High Court - Writ of control
Country Court - Warrant of control
Writ/warrant will contain:
- necessary details and amount of the outstanding debt to be recovered
- fixed amount for the costs of TCG
3 stages for TCH
- Giving notice to the judgment debtor of enforcement
- must give advanced notice
- 7 clear days (EO)
- EO has 12 months from date of notice to take the goods - Entering premises and securing the goods
- EO may use reasonable force to enter premises if necessary
- EO may secure goods on the premises or highway or remove goods from premises
- After entry EO must provide notice giving details of what is happening - Sale of the goods
- EO sells goods for best price that can reasonably be obtained (usually public auction)
- Sum is specified in the writ or warrant of control, any surplus paid back to judgment debtor
