Enforcement Notes

ENFORCEMENT

• judgment creditor can use any method AND several methods

ENFORCEMENT IN HC + COCO COMPARED

• largely same

• attachment of earnings orders only available in coco

• HC: enforcement officers (independent of courts)

• coco: bailiffs (employed by MoJ)

ENFORCEMENT OF MONEY JUDGMENTS

Transfer

1. coco HC if:

   1. execution against goods sought of judgment >5k

-----OR------

2. enforcement of charging order by sale sought where amount owing > 30k

2. HC coco if:

1. execution against goods sought of judgment <600; OR

2. charging order sought where judgment debt is <5k; OR

3. attachment of earnings order sought

3. coco debtor's home coco - if judgment creditor wishes to apply for:

1. info from debtor in designated money claim; OR

2. 3rd party debt order in a designated money claim; OR

3. charging order; OR

4. attachment of earnings order; OR

5. judgment summons

Stay of execution

• judgment debtor can apply if unable to pay OR alleges otherwise inexpedient to enforce order

• the application: written evidence + statement of means

• the effect: stay of execution pending payment by instalments

Application to obtain financial information from debtors (Part 71)

• debtor attends court to answer Qs about financial status

• used if: little known about debtor's finances

• procedure

1. application notice

2. application dealt with by court officer without hearing (r71.2)

3. court officer makes order requiring debtor to attend court and answer Qs / produce documents

4. creditor serves order personally (PD 71 para 3)

5. creditor must swear affidavit AND fill in questionnaire

6. THE HEARING

   • usually without judge - court officer asks questions

   • may be with judge if compelling reasons

7. failure to comply with order = contempt (r71.8)

Execution against goods (generic term = warrant of execution) - if attachment of earnings order in place, need permission to enforce

• HC: writ of fieri facias (fi. fa.)

• coco: warrant of execution

• issue of writ / warrant

  • issue =

    • produce documents:

      • HC: draft writ (praecipe) AND judgment

      • coco: warrant of execution

----AND----

• pay fee

----AND----

• if 6 years have elapsed since judgment, obtain permission to enforce

• seizing goods

1. gain lawful entry

   • CAN'T break outer doors, force way in (unless commercial premises)

2. seize goods to satisfy judgment AND costs of enforcement

   • CAN'T take goods necessary for employment OR basic domestic needs

     • if debtor claims seized goods necessary has 5 days to challenge

3. may be via agreement to take walking possession (person in house authorises bailiff to re-enter at any time to take goods - can use force)

• removal + sale

  • on payment, goods released (threat of sale sometimes enough)

  • usually, goods removed + sold by publicly advertised auction

Administration orders - coco only - often combined with attachment of earnings order

• coco has power to order: of own motion OR on application of creditor / debtor

• restricts creditors named in order from joining bankruptcy petitions against debtor

• usually provides for debtor to pay by instalments, with periodic dividends to named creditors

Attachment of earnings = instructing to D's employer - coco only - whilst in force need permission to enforce warrant of execution against goods - often combined with administration order

• use if debtor employed BUT has no substantial assets

• coco only - transfer HC claims to coco (see above)

• can only make if debtor has failed to make 1+ payments (unless debtor applies)

• earnings attachable

  • wages, salaries, fees, commission, overtime payable under contract of service

  • SSP

  • occupational pension

  • self-employed income

  • state pensions, benefits, allowances

• procedure

1. A applies + pays fee

   • debtor files means Q at court + serves on A

2. DJ considers and makes order at a hearing

• interaction with other methods of enforcement

  • debtor may be ordered to file list of creditors (if several), with view to making administration order (see above)

  • whilst attachment of earnings order in force, need permission of court before warrant of execution against goods will be issued for judgment debt

Third-party debt orders

• effect = transforms debt payable by 3rd party debtor into obligation to pay debt to judgment creditor

• common - but NOT limited to - 3rd parties who are responsible bodies e.g. banks

• attachable money (i.e. what order can be obtained over)

  • money in bank account

  • money in joint bank account

  • judgment debt

  • rent due to landlord

  • action for damages

  • matrimonial maintenance orders

  • salary

• procedure

1. application without notice for interim order - judge considers without hearing

   • order only made if evidence of specific account (a/c no, sort code etc.) (PD 72 para 1.3)

   • if 3rd party is a bank / building society, must do search to ID all debtor's accounts

   • must serve order on 3rd party and debtor freezes debts

2. anyone objecting to the final order - must file + serve written evidence not less than 3 days before the final hearing

3. hearing on notice for final order - enforceable as order to pay money

   • may refuse if inequitable to grant e.g. debtor insolvent

Charging orders

• = order imposing on any such property specified in order an equitable charge for securing the payment of any money due or to become due under a judgment or order

• secures judgment debt, does NOT produce money of itself

• chargeable property

  • beneficial interest in:

    • land

    • stocks

    • units of UK unit trust

    • funds in court

  • any interest under a trust

  • any interest held by a person as trustee AND judgment order made against person as trustee

  • any interest held by a person as trustee AND whole beneficial held by debtor

• procedure

1. application for interim order

   • reg'd land: register order under LRA 2002

   • serve order + app notice + evidence on debtor + creditors - can't deal with assets when served

2. anyone objecting to the final order - must file + serve written evidence not less than 7 days before the hearing

3. hearing for final order

   • court must consider:

     • personal circumstances of debtor

     • whether any other...

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