Enforcement Flashcards
Investigating the Judgment Debtor’s Means
ENQUIRY AGENTS
- essentially private investigators
- make sure a reputable firm so not misconductc can be imputed to you, the solicitor!
REGISTERS
- searches on your own volition
- Register of Judgments, Orders and Fines (lists judgments etc. against a person)
- Land Charges Registry (if an asset is charged, will make enforcement problematic!)
- Registry of Bankruptcy petitions)
- Index of Debtors (debtos against whom there are attachment of earnings orders in force)
COMPANY SEARCHES
- will reveal info about the company’s general solvency, assets, and those assets which are charged.
ORDER TO OBTAIN INFORMATION FROM THE JUDGMENT DEBTOR UNDER CPR 71
- once there’s been a judgment, can apply for order requiring judgment debtor (or officer thereof) to attend court to provide information to judgment debtor and any documents referred to in order
- if debtor fails to attend, could end up in prison.
- can ONLY be used on judgment debtor if IN THE JURISDICTION!
Means of Enforcement
- Tacking Control of Goods (TCG)
- Third Party Debt Orders
- Charging orders on land or certian securities
- Attachment of Earnings
- Proceedings for insolvency
Taking Control of Goods
Seizing a judgment debtor’s gppds and selling them to satisfy judgment debt and expenses.
Essential that judgment debtor actually has goods which can be taken and sold, and that he actually owns them ( + no third party claims to them - e.g. co-owners or higher-ranking creditors, leases)
EXEMPT GOODS
- tools of judgment debtor’s trade (only to an aggregate value of £1,350)
- basic domestic items, like clothes, bedding, furniture, essential household times.
PROCESS
- Enforcement Officer (‘EO’) must give judgment debtor at least 7 clear days notice before taking control of any goods.
- EO has 12 months from date of notice to take control of goods.
- EO may use reasonable force to enter premises (not against persons though) - but many restrictions this, such as hours of the day, not when children are present etc.)
- As an ALTERNATIVE, EO can enter into a Controlled Goods Agreement with the judgment debtor - allows jd to retain custody and use the goods, pending payment of the debt - essentially a last change for jd to pay up.
- EO must provide a notice afer entry and an inventory of what’s been taken.
- Unless jd pays, goods then sold for best price reasonably obtainable - PUBLIC AUCTION - any surplus funds will go back to jd.
Third Party Debt Orders
Appropriate where there is a debt due or accruing due to a jd by a third party within the jurisdiction.
E.G. trade debts, money jd has in a bank account!
Judgment creditor will apply - court may make order requiring third party to pay that debt to the judgment creditor instead.
Basically intercepts money owed to judgment debtor by a third party before it reaches the jd’s hands.
Charging orders on land or certain securities
Charging order = form of charge taken over land or other specified assets, which SECURES the judgment debt.
However, it does not produce any money!
Also, enforcing the charge is complicated if property is co-owned, matriomonial etc.
Any surplus on proceeds of sale go back to jd.
Attachment of Earnings
Order whereby jd’s salary will have deductions made from it by jd’s employer and paid to the court.
Jd has to be an EMPLOYEE!
Most relevant means where a jd does not have substantial assets but does earn a salary from employment.
Note: CAN ONLY BE USED IN THE COUNTY COURT
Proceedings for insolvency
If INDIVIDUAL:
- Proceedings for bankruptcy can be made if judgment debt is more than £5,000.
If COMPANY
- Proceedings for insolvency - can make statutory demand if dugment debt over £750
- The threat of proceedings itself is very effective in getting the money paid (often won’t actually start the proceedings) - gets people’s attention!
- But if still not paid, judgment creitor will rank parri passu with unsecured creditors! (Thus threat is more effective than the measure itself)
