judgments, Orders and Enforcement

Question 1

Every judgment or order will be drawn up by the court unless—

Answer 1

(a) the court orders a party to draw it up;
(b) a party, with the permission of the court, agrees to draw it up;
(c) the court dispenses with the need to draw it up; or
(d) it is a consent order

Question 2

if a party has drawn up an order themselves, the court may direct that order to be…

Answer 2

…checked by the court before it is sealed.

Question 3

before a judgment or an order is drawn up by the court, a court may direct that the parties…

Answer 3

…must file an agreed statement of its terms.

Question 4

Where a judgment or an order is to be drawn up by a party when must they file it?

Answer 4

(a) he must file it no later than 7 days after the date on which the court ordered or permitted him to draw it up so that it can be sealed by the court; and
(b) if he fails to file it within that period, any other party may draw it up and file it.

Question 5

Where a judgment or an order has been drawn up by a party and is to be served by the court—

Answer 5

(a) the party who drew it up must file a copy to be retained at court and sufficient copies for service on him and on the other parties; and
(b) once it has been sealed, the court must serve a copy of it on each party to the proceedings.

Question 6

Unless the court directs otherwise, any order made otherwise than at trial must be served on—

Answer 6

(a) the applicant and the respondent; and
(b) any other person on whom the court orders it to be served.

Question 7

court orders in different specialist divisions of the court

Answer 7

The rules in relation to drawing up and service of orders differ across specialist divisions (eg Chancery and commercial court) so always check specialist court guides if dealing with claims in divisions other than the Queen’s Bench Division

Question 8

what are consent judgments and orders?

Answer 8

where all the parties agree the terms in which a judgment should be given or an order should be made.

Question 9

A court officer may enter and seal an agreed judgment or order if—

Answer 9

(a) the judgment or order is listed in this rule;
(b) none of the parties is a litigant in person; and
(c) the approval of the court is not required by these Rules, a practice direction or any enactment before an agreed order can be made.

Question 10

what judgments and orders can a court officer deal with?

Answer 10

• payment of money
• delivery of goods
• dismissal of proceedings
• stay of proceedings on agreed terms
• setting aside judgement in default
• payment out of money to the court
• discharge of liability
• the payment, assessment or waiver of costs

Question 11

for consent orders, where the order does not come under the list allowed to be done by the court officer, then the party will have to do what?

Answer 11

apply to the court, which can be done without a hearing

Question 12

Where this rule for consent and judgment orders applies—

Answer 12

(a) the order which is agreed by the parties must be drawn up in the terms agreed;
(b) it must be expressed as being “By Consent”;
(c) it must be signed by the legal representative acting for each of the parties to whom the order relates or, where it has to be permitted by the court, by the party if he is a litigant in person.

Question 13

when does a judgement or order take effect?

Answer 13

A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.

Question 14

time from which interest begins to run for judgements

Answer 14

Where interest is payable on a judgment pursuant to section 17 of the Judgments Act 1838 or section 74 of the County Courts Act 1984, the interest shall begin to run from the date that judgment is given unless, a rule or court says otherwise

The court may order that interest shall begin to run from a date before the date that judgment is given.

Question 15

can a judgment or order be set aside by a non-party?

Answer 15

Yes. A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.

Question 16

time for complying with a judgment or order

Answer 16

A party must comply with a judgment or order for the payment of an amount of money (including costs) within 14 days of the date of the judgment or order, unless—

(a) the judgment or order specifies a different date for compliance (including specifying payment by instalments);
(b) any of these Rules specifies a different date for compliance; or
(c) the court has stayed the proceedings or judgment.

Question 17

the meaning of “creditor”

Answer 17

means the person entitled to the benefit of a judgment or order

Question 18

the meaning of “debtor”

Answer 18

means the person liable to make the payment under the judgment or order

Question 19

correction for errors in judgments and orders

Answer 19

The court may at any time correct an accidental slip or omission in a judgment or order.

A party may apply for a correction without notice.

Question 20

judgments both on claim and counterclaim

Answer 20

If there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount to pay the balance.

In a case to which this rule applies, the court may make a separate order as to costs against each party.

Question 21

If the application is opposed it should, if practicable…

Answer 21

…be listed for hearing before the judge who gave the judgment or made the order

Question 22

The judge may deal with the application without notice to alter or vary judgement if…

Answer 22

…the slip or omission is obvious or may direct notice of the application to be given to the other party or parties.

Question 23

for correction of errors in judgment, the application notice (which may be an informal document such as a letter) should describe the error and set out the correction required. An application may be dealt with without a hearing—

Answer 23

(1)where the applicant so requests,
(2)with the consent of the parties, or
(3)where the court does not consider that a hearing would be appropriate.

Question 24

An order which requires an act to be done (other than a judgment or order for the payment of an amount of money) must specify…

Answer 24

…the time within which the act should be done.

Question 25

Where proceedings are to be disposed by an order in Tomlin form, the order should read what?

Answer 25

Where proceedings are to be disposed by an order in Tomlin form, the order should read:
“The claimant and the defendant having agreed to the terms set out in the schedule hereto, IT IS ORDERED THAT all further proceedings in this claim be stayed except for the purpose of carrying such terms into effect. Permission to apply as to carrying such terms into effect.”

Question 26

what will the Tomlin order look like?

Answer 26

made up of 2 parts:

Part 1 (Order): the start look like any other consent order. this is the public part of the order. it constrained the actions t be taken by the court. such as a stay of proceedings, permission to apply or detailed assessment of costs. etc.

Part 2 (Schedule): this part is the confidential part. contain the terms of the order which can only be enforced by a further court order. enables parties to create terms which are beyond the dispute.

Question 27

what is a Tomlin order?

Answer 27

A Tomlin Order is a type of consent order. When settling a cause of action, your client might, depending upon the circumstances of its particular case, agree either a ‘standard’ consent order with the other party or a Tomlin Order.

Question 28

how does a Tomlin order get created and take effect?

Answer 28

Although consent orders and Tomlin Orders reflect the agreement of the parties, they still need the court’s approval. Once the parties have agreed the content of the order, they will need to apply to the court to have the order made.
If the court does indeed make the order, then the order takes effect like any other court order.

Question 29

can a Tomlin order get created in times where the proceedings are stayed?

Answer 29

Sometimes settlement is reached during a period when the claim has been stayed: if that is the case, then the application for the consent / Tomlin Order is treated as an application also to have the stay lifted.

Question 30

what are the advantages of a Tomlin order?

Answer 30

• confidentiality on the schedule
• there is no limit to the terms in the schedule
• the schedule can be used to draft long and complex terms.
• flexibility of the schedule, phrased in a way which is applicable to the parties

Question 31

drawbacks of Tomlin orders

Answer 31

• Tomlin orders are a little harder to enforce than consent orders
• the variation of the terms of a Tomlin order are governed by contract laws.

Question 32

what is a judgment creditor?

Answer 32

means a person who has obtained or is entitled to enforce a judgment or order

Question 33

what is a judgment debtor?

Answer 33

means a person against whom a judgment or order was given or made

Question 34

can a judgment creditor use more than one enforcement method?

Answer 34

Yes.

Question 35

transfer to the High Court for enforcement

Answer 35

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 36

enforcement of judgment or order y or against a non-party

Answer 36

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 37

effect or setting aside judgment or order

Answer 37

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 38

transfer tot county court for enforcement

Answer 38

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 order under the Attachment of Earnings Act 1971

Question 39

where there is a mandatory order, or judgment for the specific performance of a contract which has not been complied with, then the court can direct, so far as reasonably practicable, it to be done by another person who can be —

Answer 39

• a party by whom the order was obtained
• some other person appointed by the court

costs will be borne by the disobedient party.

Question 40

writ of execution includes —

Answer 40

(a) a writ of possession;
(b) a writ of delivery;
(c) a writ of sequestration;
(d) a writ of fieri facias de bonis ecclesiasticis,

Question 41

A judgment creditor may enforce a judgment or order for the payment of money by any of the following methods—

Answer 41

(1) a writ of control or warrant of control;
(2) a third party debt order;
(3) a charging order, stop order or stop notice;
(4) in the County Court, an attachment of earnings order; or
(5) the appointment of a receiver.

Question 42

can a judgment creditor obtain information about a judgment debtor?

Answer 42

Yes.

a judgment debtor may be required to attend court to provide information, for the purpose of enabling a judgment creditor to enforce a judgment or order against him.

Question 43

A judgment creditor may apply for an order requiring who to give information to enforce judgment?

Answer 43

(a) a judgment debtor; or
(b) if a judgment debtor is a company or other corporation, an officer of that body

Question 44

a judgment creditor will be required to provide information about what?

Answer 44

• the judgment debtor’s means; or
• any other matter about which information is needed to enforce a judgment or order.

Question 45

does a judgment creditor need to file notice for an application to obtain information from a judgment debtor?

Answer 45

No.

Question 46

where does the judgment creditor need to apply to for the application to obtain information from a judgment debtor?

Answer 46

the court or county court which made the judgment. except where the proceedings may have transferred be heard in the county court money claims centre.

Question 47

if a judgment debtor is served with an order to attend and give information, they must —

Answer 47

(a) attend court at the time and place specified in the order;
(b) when he does so, produce at court documents in his control which are described in the order; and
(c) answer on oath such questions as the court may require.

Question 48

what is the conduct of the hearing to obtain further information form judgement debtor?

Answer 48

• The person ordered to attend court will be questioned on oath.
• The questioning will be carried out by a court officer unless the court has ordered that the hearing shall be before a judge.

The judgment creditor or his representative:
- may attend and ask questions where the questioning takes place before a court officer; and
- must attend and conduct the questioning if the hearing is before a judge.

Question 49

for an order to give information to enforce a judgment order, the court will refer the matter to a High Court judge or Circuit Judge if the judgement debtor does what?

Answer 49

(a) fails to attend court;
(b) refuses at the hearing to take the oath or to answer any question; or
(c) otherwise fails to comply with the order,

Question 50

consequence of not complying with an order for a judgment debtor to give information

Answer 50

That judge may 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.

Question 51

when a judgment debtor fails to comply with an order to give information, the judge may direct what?

Answer 51

(a) 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
(b) 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 52

an application notice to obtain information to enforce a judgment order must contain —

Answer 52

(1)state the name and address of the judgment debtor;
(2)identify the judgment or order which the judgment creditor is seeking to enforce;
(3)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;
(4)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 their position in the company;
(5)if the judgment creditor wishes the questioning to be conducted before a judge, state this and give his reasons;
(6)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
(7)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 53

for attendance giving information to enforce a judgement oder, the court officer will —

Answer 53

(1)make a written record of the evidence given, unless the proceedings are tape recorded;
(2)at the end of the questioning, read the record of evidence to the person being questioned and ask him to sign it; and
(3)if the person refuses to sign it, note that refusal on the record of evidence.

Question 54

giving information about judgment debtor to enforce judgement order, hearing before a judge

Answer 54

Where the hearing takes places before a judge, the questioning will be conducted by the judgment creditor or his representative, and the standard questions will be used.

Question 55

what is a third party debt order?

Answer 55

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—
(a) the amount of any debt due or accruing due to the judgment debtor from the third party; or
(b) so much of that debt as is sufficient to satisfy the judgment debt and the judgment creditor’s costs of the application.

Question 56

third party orders against a joint bank account

Answer 56

it is not possible to obtain a third party order against a bank account in the joint names of the debtor and his wife

Question 57

application for a third party debt order

Answer 57

(a) may be made without notice; and
(b) must be issued in the court which made the judgment or order which it is sought to enforce, except where proceedings have transferred to another court or in the county court money claims centre.l

Question 58

details for a third party debt order application

Answer 58

• 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 remain unpaid;
• the name and address of the third party;
• if the third party is a bank or building society details of the branch and account number
• 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

Question 59

application for a charging order

Answer 59

• may be made without notice.
• Where an application is to be made to the County Court, it must be made to the County Court Money Claims Centre
• 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 relevant information and verified by a statement of truth.

Question 60

charging order application relevant information

Answer 60

• 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 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 61

what needs to be issued for there to be the enforcement method of “taking control of goods”?

Answer 61

writ or warrant of control

Question 62

what is the difference between a writ and warrant of control?

Answer 62

depending on which court is used to enforce the “taking control of goods”

Question 63

what is “Taking control of goods”?

Answer 63

seizing a judgment debtor’s goods and selling them in order to use the proceeds of sale to satisfy the judgment debt and expenses.

It is essential that the goods to be enforced against are owned by the judgment debtor and also that there are no third party claims to the goods from anyone else, for example, co-owners or higher ranking creditors.

Question 64

what types of goods are exempt from an order of “taking control of goods”?

Answer 64

• tools of the judgment debtor’s trade which are exempt, but only to an aggregate value of £1,350; and
• basic domestic items, such as clothing, bedding, furniture and essential household items.

Question 65

when can a county court issue a Taking control of goods order?

Answer 65

when the value of the debt is up to £600

Question 66

when can a High court issue a taking control of goods order?

Answer 66

when the value of the claim is above £5000

Question 67

which court can issue a taking control of goods order when the value of the debt is between £600-£5000?

Answer 67

county court or high court

Question 68

which court issues a writ of control?

Answer 68

high court

Question 69

which court issues a warrant of control?

Answer 69

county court

Question 70

what will the writ of warrant of control contain?

Answer 70

• The necessary details and amount of the outstanding debt to be recovered.
• A fixed amount for the costs of TCG will be added which includes the court fee.

Question 71

what are the three stages of “taking control of goods”?

Answer 71

• giving notice to judgment debtor of enforcement
• entering the premises and securing goods
• sale of the goods

Question 72

taking control of goods. Stage 1: giving notice to judgment debtor of enforcement

Answer 72

• Any attempt to take control of goods has to be preceded by the giving of advance notice to the judgment debtor.
• The enforcement officer will write to the judgment debtor at least 7 clear days before taking control of any goods.
• The enforcement officer is not required to specify exactly when he will attempt to take the goods. The EO has 12 months from the date of giving notice in which to take control of the judgment debtor’s goods.
• The judgment debtor is therefore at risk of TCG happening at any time in this period after notice has been given.

Question 73

entering premises and securing/seizing goods. for taking control of goods order.

Answer 73

• The enforcement officer may use reasonable force to enter premises if necessary
• Once entry has happened, the enforcement officer may secure goods on the premises or highway or remove goods from the premises ready for sale.
• After entry of premises the enforcement officer must provide a notice for the judgment debtor giving details of what is happening.

Question 74

what are the limits to an enforcement officer who is to enter premises to seize goods?

Answer 74

cannot be done between the hours of 21:00-6:00.
cannot be done if there is only a child or vulnerable person present.

Question 75

what is a controlled goods agreement?

Answer 75

• where the judgement debtor has a lasts chance to pay the debt.
• the enforcement officer will still seize the goods and before the goods are sold the debtor has time to pay the debt.
• seen as a last chance.

Question 76

where does permission of the court need to be given for a writ or warrant?

Answer 76

• 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 or liable for the judgment order
• 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

Question 77

where do you make an application for attachment of earnings?

Answer 77

An application to the County Court for an attachment of earnings order must be made to the County Court Money Claims Centre.

Question 78

which court can issue an attachment of earnings order?

Answer 78

County Court

Question 79

procedure for applying for attachment of earnings order

Answer 79

• The judgment creditor applies by filing an application in a standard form, certifying the amount of the judgment that is outstanding and paying a fee.
• The application and a reply form is served on the debtor who should complete and return the reply form to the court.
• The court may then make an order (without the attendance of either party) attaching a proportion of the judgment debtor’s earnings.
• That order is served on the debtor and the judgment debtor’s employer who is required to make the appropriate deduction from the debtor’s earnings and pay it to court for onward transmission to the judgment creditor.

Question 80

how does an attachment of earnings order work?

Answer 80

the debt will be paid through instalments which will be made by deductions from the wage packet of the judgment debtor. this will be sent to the court who will forward it on to the creditor.

Question 81

attachment of earrings order. problem of debtor changing Jobs

Answer 81

Obviously, a debtor is not obliged to stay in the same job and, by the time the order has been obtained, or while it is enduring, the debtor may change jobs. Where it appears to the County Court that an employer does not have the debtor in their employment, the court may discharge the order and the judgment creditor will need to start again in respect of enforcing any outstanding balance.

Question 82

attachment of earrings order. problem of debtor not returning reply form

Answer 82

There is opportunity for delay if the judgment debtor chooses not to return the reply form. The court staff will then issue an order served personally on the judgment debtor compelling the judgment debtor to respond. Eventually this process can lead to the judgment debtor being imprisoned, but further hearings are required.

Question 83

why would a judgment creditor want to gain information about the debtor’s assets?

Answer 83

to know which form of enforcement the creditor wants to choose.

Question 84

what are the 4 kinds of charging order?

Answer 84

• land
• securities
• funds in court
• partnership property

it will be a charge on the debtors interest in one of these above

Question 85

if the creditor achieves a charging order over land, what can they do next?

Answer 85

they can apply for an order of sale in order to get their debt paid. Liquidate the asset itself.

Question 86

can a charging order be on a matrimonial home?

Answer 86

Yes. but only the beneficial interest of the land itself.

Question 87

what is the limit of an attachment of earnings order?

Answer 87

no debt less than £50