Enforcement

Question 1

1. Judgement creditor and debtor

Answer 1

• Judgement creditor = person who has obtained or is entitled to enforce a judgement or order
• Judgement debtor person against whom a judgement or order was given or made

Question 2

2. Actions upon failure to pay a fine

Answer 2

• If a fine is not paid in accordance with the order imposing it, the court officer shall, as soon as reasonably possible, report the matter to a judge.
• Where a fine is directed to be paid by instalments, default in the payment of any instalment may be taken as if default had been made in payment of the whole of the fine.
• If an order is made for payment of a fine to be enforced by warrant of control, the order shall be treated as an application to the court for the issue of the warrant at the time when the order was made.

Question 3

3. Pay fine then later give evidence about whether fine should have been imposed

Answer 3

• If a person pays a fine and later gives evidence to satisfy the court that, if the evidence had been given earlier, no fine or a smaller fine would have been imposed, the court may order the whole or part of the fine to be repaid

Question 4

4. Methods of enforcing judgements or orders that a judgement creditor can use

Answer 4

• A judgement creditor can (unless xxx provides otherwise
• Use any method of enforcement available and
• Use more than one method at the same time or one after another

Question 5

5. if a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, the court may direct that the act required to be done may, so far as practicable, be done by another person, being—

Answer 5

• if a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, the court may direct that the act required to be done may, so far as practicable, be done by another person, being—
• the party by whom the order or judgment was obtained; or
• some other person appointed by the court

Question 6

6. Who bears costs for enforcement of order or judgement

Answer 6

• The costs will be borne by disobedient party

Question 7

7. Transfer of proceedings for enforcement

Answer 7

• A judgment creditor wishing to enforce a High Court judgment or order in the County Court must apply to the High Court for an order transferring the proceedings.

Question 8

8. Enforcement of judgement or order by or against a non party

Answer 8

• If a judgment or order is given or made in favour of or against a person who is not a party to proceedings, it may be enforced by or against that person by the same methods as if he were a party.

Question 9

9. Effect of setting aside judgement or order

Answer 9

• If a judgment or order is set aside, any enforcement of the judgment or order shall cease to have effect unless the court otherwise orders.

Question 10

10. Who is it for to enforce the judgement

Answer 10

• it is for the judgment creditor, not the court, to enforce the judgment.

Question 11

11. Order to attend court (for further info)

Answer 11

• Part 71 enables the judgment creditor to obtain information from the judgment debtor for the purpose of being able to better decide which method or methods of enforcement to use (sequentially or simultaneously, see r.70.2).
• There must, of course, be a judgment: this procedure is not available pre-action.

Question 12

12. How is application for an order to attend court obtained

Answer 12

• An application to do so
• may be made without notice; and
• must be issued in the court or County Court hearing centre which made the judgment or order which it is sought to enforce, except that—
• if the proceedings have since been transferred to a different court or hearing centre, it must be issued in that court; or
• subject to subparagraph (b)(i), if it is to enforce a judgment made in the Civil National Business Centre, it must be issued in accordance with section 2 of Practice Direction 70.

Question 13

13. How can application for an order to attend court be dealt with

Answer 13

• An application may be dealt with by a court officer without a hearing.

Question 14

14. What must a person served with an order to attend court do

Answer 14

• A person served with an order issued under this rule must—
• attend court at the time and place specified in the order;
• when he does so, produce at court documents in his control which are described in the order; and
• answer on oath such questions as the court may require.

Question 15

15. What does order to attend court contain by way of a notice

Answer 15

• An order under this rule will contain a notice in the following terms, or in terms to substantially the same effect—
• “If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.”

Question 16

16. Conduct of the hearing when person is ordered to attend court

Answer 16

• Person is questioned under oath
• Questioning will be carried out by a court officer, unless the court has ordered that the hearing shall be before a judge
• Judgement creditor or his representative
• May attend and ask questions where the questioning is done by court officer
• MUST attend and conduct questioning if the hearing is before a judge

Question 17

17. Failure to comply with an order to attend court

Answer 17

• If a person against whom an order has been made under rule 71.2—
• fails to attend court;
• refuses at the hearing to take the oath or to answer any question; or
• otherwise fails to comply with the order,
• the court will refer the matter to a High Court judge or Circuit Judge.
• That judge may, provided the judgment creditor has complied with rules 71.4 and 71.5, hold the person in contempt of court and make an order punishing them by a fine, imprisonment, confiscation of assets or other punishment under the law.
• If such an order is made, the judge will direct that—
• the order shall be suspended, provided that the person—
• attends court at a time and place specified in the order; and
• complies with all the terms of that order and the original order; and
• if the person fails to comply with any term on which the order is suspended, they shall be brought before a judge to consider whether the order should be discharged.

Question 18

18. Options where the judgement debtor is owed money by a TP

Answer 18

• If a judgment debtor is owed money by a third party the judgment creditor can obtain an order that the third party should pay the judgment creditor. The order is obtained without notice on an interim basis. A hearing follows when the court decides whether to make a final third party debt order.

Question 19

19. Objection to TP debt order

Answer 19

• Any third party, or judgment debtor, who objects to the making of the order must file and serve written evidence stating the grounds for the objection (r.72.8).

Question 20

20. Effect of interim TP debt order

Answer 20

• The interim order prevents the debtor from withdrawing money from the account.
• Rule 72.7 enables a judgment debtor who is an individual to obtain “a hardship payment order” to permit the bank or building society to make payment(s) out of the account on grounds of hardship.

Question 21

21. Final third party debt order

Answer 21

• Upon the application of a judgment creditor, the court may make an order (a “final third party debt order”) requiring a third party to pay to the judgment creditor—
• the amount of any debt due or accruing due to the judgment debtor from the third party; or
• so much of that debt as is sufficient to satisfy the judgment debt and the judgment creditor’s costs of the application.
• The court will not make an order under paragraph 1 without first making an order (an “interim third party debt order”).
• When deciding whether to issue a third party debt order against money in an account covered by the specified sections of the Senior Courts Act and County Courts Act, the court will ignore any account conditions that require presenting a deposit receipt before withdrawal. This means that even if an account has such a condition, it will not prevent the court from issuing a third party debt order to seize funds from that account.

Question 22

22. Application for a TP debt order

Answer 22

• Application can be made
• Without notice
• Must be issued at court which made the judgement or order which it is seeking to enforce, unless
• Proceedings have since been transferred
• if it is to enforce a judgment made in the Civil National Business Centre, it must be issued in accordance with section 2 of Practice Direction 70
• Application notice must be
• In form and contain the information required by PD 72 and
• Be verified by a statement of truth

Question 23

23. Debt that is due to a judgement debtor + another

Answer 23

• it was not possible to obtain a garnishee order (now a third party debt order) against a bank account in the joint names of the debtor and his wife.

Question 24

24. Charging order

Answer 24

• where a judgment debtor is required to pay a sum of money to a judgment creditor then, for the purpose of enforcing that judgment or order, the court may make an order (a “charging order”) imposing on such property of the judgment debtor as may be specified in the order, a charge for securing the payment of any money due under the judgment or order.

Question 25

25. Four kinds of charging order

Answer 25

* Four kinds of charging order * a charging order on land (the most common) * a charging order on securities * a charging order over a judgment debtor’s interest in a fund in court * a charge over the judgment debtor’s interest in partnership property.

Question 26

26. Charging order on land

Answer 26

* A charging order on land provides the judgment creditor with security equivalent to a mortgage over the land specified in the order. It is, of course, subject to any prior mortgages and charges. * Subsequently, the judgment creditor can apply for an order for sale so that, subject to prior encumbrances, they can be paid their judgment debt (and accrued interest) out of the proceeds of sale

Question 27

27. Most charging order made where

Answer 27

* County Court

Question 28

28. When does HC have exclusive jurisdiction for a charging order

Answer 28

* The only situation where the High Court has exclusive jurisdiction is where the property to be charged is a fund lodged in the High Court.

Question 29

29. When does CC have exclusive jurisdiction for a charging order

Answer 29

* In the case of a County Court judgment (or a fund lodged in a County Court), the County Court has exclusive jurisdiction. * The jurisdiction of the County Court to make a charging order over land is unlimited.

Question 30

30. Process for a charging order

Answer 30

* Order is made in two stage process * Interim charging order is obtained without notice * In the absence of any response from the judgment debtor (or any other person served with notice of the application) by way of objection to the making of a charging order, within the time permitted by r.73.10(2), the application will be considered by a judge or legal adviser, without a hearing. * A legal adviser may make a final charging order but only if it provides for the continuation of the interim charging order without modification * A District Judge may make a final charging order with or without modification or such other order as the court considers appropriate. * If an objection is filed, the application will be sent to the judgment debtor’s home court for the fixing of a hearing before the District Judge. Notice of any such hearing will be served by the court on the parties and on any other person in respect of whom the judgment debtor has filed a certificate of service in relation to the application and the interim charging order

Question 31

31. Charging order on matrimonial home

Answer 31

* If the property is in the sole name of the judgment debtor—or owned jointly by spouses who are both judgment debtors—the charge will be against the land itself. * A charging order can be made in respect of land which the debtor owns jointly with another (e.g. a spouse) * However, the order ranks as a charge on the debtor’s beneficial interest rather than upon the land itself.

Question 32

32. Application for a charging order

Answer 32

* Application may be made without notice * Where an application for a charging order is to be made to the County Court, it must be made to the Civil National Business Centre, unless the application is for a charging order over an interest in a fund in court. * An application to the County Court for a charging order over an interest in a fund in court must be made to the County Court hearing centre where the order or judgment was made. * A judgment creditor may apply for a single charging order in respect of more than one judgment or order against the same judgment debtor. * The application notice must— * be in the form and contain the information required by Practice Direction 73; and * be verified by a statement of truth.

Question 33

33. Writs and warrants of control

Answer 33

* writs and warrants of control enable the taking control and sale of goods * This authority to take control of goods is solely to recover money. * Writs/warrants of control are the mode for the enforcement of a money judgment by the seizure and sale of the debtor’s goods and chattels sufficient to satisfy the judgment debt and costs of the execution.

Question 34

34. Priority of writs and warrants of control are determined by what

Answer 34

* The priority of a writ of control is determined by when it is delivered to the relevant enforcement officer, whereas the priority of a warrant of control is determined by reference to the date upon which it was issued.

Question 35

35. Location of enforcement for a judgment or order of a county court for the payment of a sum of money which it is sought to enforce wholly or partially by execution against goods

Answer 35

* shall be enforced only in the High Court where the sum which it is sought to enforce is £5,000 or more and the proceedings in which the judgment or order was obtained did not arise out of an agreement regulated by the Consumer Credit Act 1974; * shall be enforced only in the county court where the sum which it is sought to enforce is less than £600; * in any other case may be enforced in either the High Court or in a county court.

Question 36

36. A relevant writ or warrant must not be issued without the permission of the court where

Answer 36

* A relevant writ or warrant must not be issued without the permission of the court where— * six years or more have elapsed since the date of the judgment or order; * any change has taken place, whether by death or otherwise, in the parties— * entitled to enforce the judgment or order; or * liable to have it enforced against them; * the judgment or order is against the assets of a deceased person coming into the hands of that person’s executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets; * any goods to be seized under a relevant writ or warrant are in the hands of a receiver appointed by a court or sequestrator; * under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled (other than where non-compliance with the terms of suspension of enforcement of the judgment or order is the failure to pay money); * the permission sought is for a writ of control or writ of execution, and that writ is to be in aid of another writ of control or execution; or * an application is made for a writ of sequestration.

Question 37

37. An application for permission to issue writ or warrant must

Answer 37

* identify the judgment or order to which the application relates; * if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed; * where the case falls within paragraph (3)(a), state the reasons for the delay in enforcing the judgment or order; * where the case falls within paragraph (3)(b), state the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order; * where the case falls within paragraph (3)(c) or (d), state that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that that person has refused or failed to do so; * give such other information as is necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment or order, and that the person against whom it is sought to issue execution is liable to execution on it.

Question 38

38. Where an application for writ/ warrant is made for multiple judgments or orders

Answer 38

* If because of one event, an applicant seeks permission under paragraph (3)(b) to enforce more than one judgment or order, the applicant need only make one application for permission. * Where one application is made for multiple judgments or orders — * a schedule must be attached to the application for permission, specifying all the judgments or orders in respect of which the application for permission is made; and * if the application notice is directed to be served on any person, it need set out only such part of the application as affects that person.

Question 39

39. Where to make application if there are no pre-existing proceedings

Answer 39

* County Court

Question 40

40. Where to make application for attachment of earnings order

Answer 40

* An application to the County Court for an attachment of earnings order must be made to the Civil National Business Centre

Question 41

41. Mode of applying for attachment of earnings order

Answer 41

* An application for an attachment of earnings order must include a certificate of the amount of money remaining due under the judgment or order and that the whole or part of any instalment due remains unpaid. * Where an attachment of earnings order is sought to enforce an order of a magistrates’ court, the applicant must also file with the application— * a certified copy of the order; and * a witness statement verifying the amount due under the order or, if payments under the order are required to be made to the designated officer for the magistrates’ court, a certificate by that designated officer to the same effect.

Question 42

42. Methods of enforcing money judgments

Answer 42

* A judgment creditor may enforce a judgment or order for the payment of money by any of the following methods— * a writ of control or warrant of control (see Parts 83 and 84); * a third party debt order (see Part 72); * a charging order (see Part 73); * in the County Court, an attachment of earnings order (see Part 89);

Question 43

43. Application notice for an order to attend court must

Answer 43

* The application notice must - * state the name and address of the judgment debtor; * identify the judgment or order which the judgment creditor is seeking to enforce; * if the application is to enforce a judgment or order for the payment of money, state the amount presently owed by the judgment debtor under the judgment or order; * if the judgment debtor is a company or other corporation, state— * the name and address of the officer of that body whom the judgment creditor wishes to be ordered to attend court; and * his position in the company; * if the judgment creditor wishes the questioning to be conducted before a judge, state this and give his reasons; * if the judgment creditor wishes the judgment debtor (or other person to be questioned) to be ordered to produce specific documents at court, identify those documents; and * if the application is to enforce a judgment or order which is not for the payment of money, identify the matters about which the judgment creditor wishes the judgment debtor (or officer of the judgment debtor) to be questioned.

Question 44

44. Order to attend court - questioning before a judge

Answer 44

* The order will provide for the judgment debtor (or other person to be questioned) to attend the County Court hearing centre serving the address where the judgment debtor resides or carries on business, unless a judge decides otherwise. * The order will provide for questioning to take place before a judge only if the judge considering the request decides that there are compelling reasons to make such an order.

Question 45

45. Attendance at court - normal procedure

Answer 45

* Court officer will ask a standard series of questions * From appendix A if person questioned is judgement debtor * From appendix B if person questioned is officer of company * The judgment creditor or his representative may either— * attend court and ask questions himself; or * request the court officer to ask additional questions, by attaching a list of proposed additional questions to his application notice * The court officer will— * make a written record of the evidence given, unless the proceedings are tape recorded; * at the end of the questioning, read the record of evidence to the person being questioned and ask him to sign it; and * if the person refuses to sign it, note that refusal on the record of evidence

Question 46

46. Attendance at court - procedure where order is to attend before a judge

Answer 46

* Where the hearing takes places before a judge, the questioning will be conducted by the judgment creditor or his representative, and the standard questions in the forms in Appendixes A and B will not be used. * The proceedings will be tape recorded and the court will not make a written record of the evidence.

Question 47

47. Application notice for TP debtor

Answer 47

* The application notice must contain the following information— * the name and address of the judgment debtor; * details of the judgment or order sought to be enforced; * the amount of money remaining due under the judgment or order; * if the judgment debt is payable by instalments, the amount of any instalments which have fallen due and remain unpaid; * the name and address of the third party; * if the third party is a bank or building society— * its name and the address of the branch at which the judgment debtor’s account is believed to be held; and * the account number; * or, if the judgment creditor does not know all or part of this information, that fact; * confirmation that to the best of the judgment creditor’s knowledge or belief the third party— * is within the jurisdiction; and * owes money to or holds money to the credit of the judgment debtor; * if the judgment creditor knows or believes that any person other than the judgment debtor has any claim to the money owed by the third party— * his name and (if known) his address; and * such information as is known to the judgment creditor about his claim; * details of any other applications for third party debt orders issued by the judgment creditor in respect of the same judgment debt; and * the sources or grounds of the judgment creditor’s knowledge or belief of the matters referred to in other parts of the application

Question 48

48. Application notice for charging orders

Answer 48

* The application notice must contain the following information— * the name and address of the judgment debtor; * details of the judgment or order sought to be enforced; * the amount of money remaining due under the judgment or order; * if the judgment debt is payable by instalments— * whether the order was made on or after 1 October 2012; and * the amount of any instalments which have fallen due and remain unpaid; * if the judgment creditor knows of the existence of any other creditors of the judgment debtor, their names and (if known) their addresses; * identification of the asset or assets which it is intended to charge including, where applicable, the title number under which any land upon which it is sought to impose a charge is registered; * details of the judgment debtor’s interest in the asset; and * the names and addresses of the persons on whom an interim charging order must be served under rule 73.7.

Question 49

49. Enforcement by taking control of goods

Answer 49

* In simple terms the taking control of goods process is as follows * the enforcement agent gives notice of enforcement to the debtor (Sch.12 para.7). * the debtor either makes contact with the enforcement agent and pays the debt or enters into an arrangement for payment which is maintained or the enforcement agent takes control of goods. * goods may be taken control of by the enforcement agent in four ways (Regulation 13 — securing goods on premises, securing goods on a highway, removing goods and storing them elsewhere or by entry into a controlled goods agreement). * The enforcement agent may only do this within the prescribed period * the goods are sold at public auction (Sch.12 para.41). * the proceeds of sale are used to pay the amount outstanding—which includes the debt and costs

Question 50

50. Applications to the court which the enforcement agent can make

Answer 50

* to shorten the period for notice to the debtor of enforcement (r.84.4) * to extend the prescribed period within which the enforcement agent may take control of goods (r.84.5) * to take control of goods during prohibited periods (r.84.6) * to enter, re-enter or remain on premises outside permitted hours (r.84.7) * to re-enter premises giving less than the minimum period of notice (r.84.8) * to issue a warrant in respect of specified premises and to use reasonable force to enter premises (r.84.9) * to use reasonable force in respect of goods on a highway (r.84.10) * to sell other than by public auction (r.84.11) * to deal with abandoned goods (r.84.12) * to obtain exceptional disbursements (r.84.14)

Question 51

51. Controlled goods agreements

Answer 51

* controlled goods agreement is one of the four ways that an enforcement agent may take control of goods * This is an agreement under which the enforcement agent and the debtor agree terms for the repayment by the debtor of the sum outstanding under the judgment or order. * The agreement must be in writing and be signed by the enforcement agent and the debtor, a person authorised by him (over 18 years old), or a person in apparent authority on premises used, in part or wholly, to carry on a trade or business * The debtor must be provided with a copy of the agreement, regardless of whether or not it is the debtor or someone with authority or apparent authority who actually enters into the agreement

Question 52

52. When is attachment of earnings order available

Answer 52

* the County Court can make an attachment of earnings order to secure payments under a High Court or County Court judgment where the judgment debt, or the amount remaining payable under the judgment is not less than £50, or payments under an administration order.

Question 53

53. Who can make attachment of earnings order

Answer 53

* CC only * The former power of the High Court to make attachment of earnings orders has been revoked (save for the power to make an order to secure payments under a High Court maintenance order).

Question 54

54. Process of obtaining an attachment of earnings order

Answer 54

* For a creditor the procedure is very simple, usually involving only the completion of the Request for an Attachment of Earnings Order (Form N337) and payment of the prescribed fee: the court does the rest.

Question 55

55. Transferring to CC for enforcement

Answer 55

* The most common reason for transferring from the High Court to the County Court for enforcement purposes is that the County Court has exclusive jurisdiction to make an attachment of earnings order

Question 56

56. Transferring to the HC for enforcement

Answer 56

* The most common reason for transferring from the County Court to the High Court for enforcement is to use a High Court Enforcement Officer to levy execution. * Only where the sum which it is sought to enforce is less than £600 or the judgment arises out of an agreement regulated by the Consumer Credit Act 1974 must the judgment be enforced in the County Court. * In other cases the judgment can—and if it is sought to enforce £5000 or more must—be enforced in the High Court

Question 57

57. What must attachment of earnings order specify

Answer 57

* The order shall specify * (a) the normal deduction rate, that is to say, the rate; and * (b) the protected earnings rate, that is to say the rate (so expressed) below which, having regard to the debtor’s resources and needs, the court thinks it reasonable that the earnings actually paid to him should not be reduced. * If the order is made under Schedule 5 to the Courts Act 2003 then it shall specify the percentage deduction rate in accordance with fines collection regulations made under that Schedule.

Question 58

Where— the court grants permission, under this rule or otherwise, for the issue of a writ of execution or writ of control (“the permission order”); and the writ is not issued within one year after the date of the permission order,

Answer 58

the permission order will cease to have effect. Where a permission order has ceased to have effect, the court may grant a fresh permission order.