Enforcement

Question 1

What are enforcement proceedings

Answer 1

Steps taken post judgment by the successful party to obtain payment from the unsuccessful party (judgment debtor)

Question 2

Investigating opponents means

Answer 2

Should consider means:
- before
- during
- repeat post judgment

Question 3

Order to obtain information from the judgment debtor

Answer 3

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.

Question 4

Main methods of enforcement

Answer 4

• 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.

Question 5

Investigating debtors means

Answer 5

• Company search
• applied for official copies at land registry
• searched against other registers
• instructed an enquiry agent to report

Question 6

Enquiry agent

Answer 6

Investigate the compnay or individual upon request.

Usually expensive - make sure to use reputable firm.

Question 6

Company searches

Answer 6

Reveal extensive financial information about:

• company’s general solvency
• company’s assets
• whether those assets are charged

Question 7

Registers

Answer 7

1. 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
2. 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
3. Attachment of earnings order index
   - index shows the debtors against whom there are attachment of earnings orders in force
4. 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

Question 8

Features to consider of the opponent

Answer 8

• 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.

Question 9

order to obtain information

Answer 9

Once judgment has been obtained it is possible to use the procedure to involve the court in obtaining information directly (CPR 71 - discussed earlier)

Question 10

Enforcement in other jurisdictions

Answer 10

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

Question 11

Taking control of goods orders

Answer 11

• 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

Question 12

Taking control of goods order which court

Answer 12

Up to £600 - County Court

£600-£5000 - Either court

£5000+ - High Court

Question 13

How to apply for TCG

Answer 13

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

Question 14

3 stages for TCH

Answer 14

1. 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
2. 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
3. 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

Question 15

Controlled goods agreement

Answer 15

Alt to removing goods where judgment debtor is permitted to retain custody of the goods, EO retains ctrol pending payment of the debt

• Agreement will include terms agreed between EO and judgment debtor for payment of debt - ‘last chance’

Question 16

Third party debtor order

Answer 16

The order intercepts money owed to the debtor by a third party before it reaches the debtor’s hands - requiring the third party to pay the money to the judgment creditor instead.

Application is made to the court by judgement creditor and court may make order requiring a third party to pay some or all of debt.

• third party will search and disclose information to court
• if third party or debtor objects must file and serve written evidence stating grounds for objection
• first interim order can be made without notice
• then served on debtor adn followed by hearing where court will decide final order

Question 17

Charging orders on land or certain securities

Answer 17

• Charge is taken over land which secures the judgment debt (only produces money on sale of asset)
• interim and final order process
• can apply for an order of sale (which can be lengthy)

Question 18

Attachment of earnings order

Answer 18

ONLY in county court

Must not be less than £50.

Judgement debtor’s salary will have deductions made from it by their employer.

These deductions will be paid into court for onward transmission directly to the judgment creditor.

Creditor applies by filing an appliciaiton, reply form si served on edbtor
Court then makes an order attaching proportion fo the judgement debtor’s earnigns.

Order is served on debtor and employer.

Have to reapply every time the debtor gets a new job.

Question 19

Insolvency proceedings

Answer 19

Individual: Can be issued when judgment debt is more than £5000

Company: can be issued when judgment debt is more than £750

• petition is issued and presented to judgment debtor’s local court
• served on judgment debtor
• court fixes time for hearing
• if debtor does not oppose or attend bankrupcy or winding up order will likely be made
• Debtor’s assets will be distributed

May be important to know what other creditors exist as they may end up ranked last and receive nothing

Question 20

Statutory demand

Answer 20

Precursor to insolvency proceedings.

Not necessary but makes order much more likely.

Gives period of 21 days after service of the demand.

Very simply and low cost to serve.

Insolvency is an extreme method if money is available. but statutory demand might be a good incentive for debtor to settle the debt bc consequences are so severe.