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Enforcement Of Money Judgments Notes

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This is an extract of our Enforcement Of Money Judgments document, which we sell as part of our BPTC Civil Ligitation Notes collection written by the top tier of City Law School students.

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Enforcement of money judgments
SUMMARY, ENFORCEMENT
-A judgment creditor can ask for the court's assistance in discovering the assets available for enforcement by applying to obtain information from the judgment debtor.
-A money judgment can be enforced by:

1. writ/warrant of control against the judgment debtor's goods;

2. by third party debt order against eg a bank account;

3. by attachment of earnings against the judgment debtor's salary;

4. secured by obtaining a charging order (normally on land)
-Each type has its own enforcement procedure (land, goods, injunctions etc)
-Most enforcement procedures are dealt with administratively by the court,
EXCEPT, (court orders required for):
o Third party debt orders;
o Charging orders;
o Committal
-(NB: re writ/warrant of control ? normally no permission required,
except in the situations listed in r83.2, eg 6+ years since judgment;
one party died since judgment etc)
-(a) Third Party Debt Orders and (b) Charging Orders have a 2-stage process:
o Interim orders are sought without notice;
o Final orders are sought at a final hearing.
-[[so all the 4 types of enforcement mechanism are initially applied for without notice (but then for 3rd party debt orders and charging orders need orders for second stage of final orders)]
PD40B (Judgments & Orders), para 4, Correction of errors in judgments & Orders???

Where a judgment/order contains an accidental slip or omission ? a party may apply for it to be corrected.
The application notice (which may be an informal doc such as a letter) should describe the error, and set out the correction required .
An application may be dealt with without a hearing if:
o (1) where the applicant so requests;
o (2) with the consent of the parties; or

(3) where the court does not consider that a hearing would be appropriate.
The judge may deal with the application without notice IF: the slip/omission is obvious; or may direct notice of the application to be given to the party/parties.
If the application is opposed ? it should, if practicable, be listed for hearing before the judge who gave the judgment/made the order.
The court has an inherent power to vary its own orders, to make the meaning &
intention clear.

PD40B, para 8, Orders requiring an act to be done ?(1) An order which requires an act to be done (other than a judgment/order for the payment of an amount of money) ? MUST specify the time within which the act should be done.
(2) the consequences of failure to do an act within the specified time may be set out in the order. The wording of the following examples suitably adapted must be used:
o (1) Unless the [claimant][defendant] serves his list of documents by 4.00pm on Friday, January 22, 1999, his [claim][defence] will be struck out and judgment entered for the [defendant][claimant]; OR
o (2) Unless the [claimant][defendant] serves his list of docs within 14 days of service of this order his [claimant][defence] will be struck out and judgment entered for the [defendant][claimant].
o The first example should be used wherever possible (i.e. specifies the date and time more precisely)

CPR PART 70: general rules about enforcement of judgments & orders
CPR 70.1, Scope of this part & interpretation
-(1) This Part contains general rules about enforcement of judgments and orders

(Rules about specific methods of enforcement are contained in Parts 71-73,
81, 83, 84, 89)
-(2) In this part and in parts 71-73:
o "judgment creditor" = a person who has obtained or is entitled to enforce a judgment or order;
o "judgment debtor" = a person against whom a judgment/order was given or made;
o "judgment or order" includes an award which the court has:
-(i) registered for enforcement;
-(ii) ordered to be enforced; or
-(iii) given permission to enforce
-As if it were a judgement or order of the court; and in relation to such an award, "the court which made the judgment or order" means the court which registered the award or made such an order;
o "Judgment or order for the payment of money":
-includes a judgment/order for the payment of costs;
-but does NOT include a judgment/order for the payment of money into court.
CPR 70.2, Methods of enforcing judgments/orders
-(1) PD70 sets out methods of enforcing judgments/orders for the payment of money.
-(2) a judgment creditor MAY, except where an enactment/rule/PD provides otherwise:
o (a) use any method of enforcement which is available; and

(b) use more than one method of enforcement, either at the same time or one after another (sequentially or sequentially). PD70, para 1.1, Methods of Enforcing MONEY judgments, r70.2
-1.1, a judgment creditor may enforce a judgment/order for the payment of money,
by any of the following methods:
-1.1, a judgment creditor may enforce a judgment/order for the payment of money,
by any of the following methods:
1) a writ of control (High Court); or warrant of control (County Court) (see
Parts 83-84)
-[for seizure and sale of the debtor's goods and chattels to satisfy the judgment debt ? see Pt 83 re writs & warrants; Pt 84 re taking control of goods];
-Advantages: quick; cheap; easy
-Disadvantages: only likely to satisfy a small debt; might not be able to sell the goods; goods are sold at auction (often get less than an open market)
2) a third party debt order (see Part 72), eg against a bank account;
-Where a 3rd party owes money to the judgment debtor
-Direct payment from 3rd party to the judgment creditor
-Advantage: reputable 3rd party (bank/building society), likely to pay money direct to judgment creditor
-Disadvantage: cannot get 3rd party debt orders over joint accounts 3) a charging order, stop order or stop notice (see Part 73)
-[a charging order: imposes on property of the debtor a charge for securing the payment of money due];
-Disadvantages: can be hard to get the money; have to order a sale;
could be hard if the property is jointly owned;
-Any prior charges on the land (eg mortgages) will take priority, the equity on the land might be small 4) (in the County Court) an attachment of earnings order (ese Part 89);
-(creditor gets order allowing them to take funds directing from the wages of the debtor)
-Advantage: good for small debts; cut out the debtor
-Disadvantage: slow; maybe only small amounts 5) The appointment of a receiver (see Part 69).
-1.2, in addition, the court may make the following orders against a judgment debtor:
1) An order of committal, but only if permitted by:
-(a) A rule; and
-(b) the Debtors Act 1869 and 1878
-(see Pt 81 re proceedings/applications re contempt of court).
2) In the High Court, a writ of sequestration, only if permitted by 81.20
-1.3, the enforcement of a judgment/order may be affected by:
1) The enactments relating to insolvency; and 2) County Court administration orders.
para 1A.1, definitions:
-In this PD: ?(1) "writ of control" is to be construed in accordance with s62(4) Tribunals Courts &
Enforcement Act 2007;
(2) "writ of execution" includes:
o (a) a writ of possession;
o (b) a writ of delivery;
o (c) a write of sequestration;
o (d) a writ of fieri facias de bonis ecclesiasticis;
o And any further writ in aid of any such writs

But does not include a write of control

CPR 70.2A, Court may order act to be done, by another person, at expense of disobedient party
-(1) In this rule, "Disobedient party" means = a party who has not complied with a mandatory order, an injunction, or a judgment/order for specific performance of a contract.
-(2) Subject to para (4), if a mandatory order/injunction/judgement or order for SP 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:
o (a) the party by whom the order/judgment was obtained; or

(b) some other person appointed by the court.
-(3) where Para (2) applies:
o (a) the costs to another person of doing the act will be borne by the disobedient party;
o (b) upon the act being done the expenses incurred may be ascertained in such manner as the court directs; and

(c) execution may issue against the disobedient party for the amount so ascertained and for costs.
-(4) Para (2) is without prejudice to:
o (a) the court's powers under s39 SCA 1981 [execution of instrument by person nominated by High Court]; and

(b) the court's powers to punish the disobedient party for contempt.
CPR 70.3 Transfer of proceedings for enforcement
-(1) subject to r83.17, a judgment creditor wishing to enforce a High Court judgment/order in the County Court; must apply to the High Court for an order transferring the proceedings.
-(2) a PD may make provisions about the transfer of proceedings for enforcement.
-(r83.19 contains provisions re transfer of County Court proceedings to the High
Court).
Need to transfer from High Court to County Court if:
-seeking an attachment of earnings order, as County Court has exclusive jurisdiction to make one (see below); so, if in High Court, will need to transfer to County Court to get such an order; ??

Judgment must be enforced in the County Court if:
o The sum which it is sought to enforce is less than PS600; or

the judgment arises out of an agreement regulated by Consumer Credit Act

1974. Sum less than PS600
[[IGNORE THIS: though Sime pg 531-2 says: this PS600 limit only applies if enforcement is by taking control of goods; and says that if a charging order is sought, if debt is less than PS5,000 it MUST be in County Court???)

Commentary, 70.3.2, Need to transfer to High Court for enforcement if:
-The most common reason for transferring from County Court to the High Court for enforcement ? is to use a High Court Enforcement Officer to levy execution.
-Judgment must be enforced in the County Court if:
o For execution of goods, where the sum which it is sought to enforce is less than PS600; or

the judgment arises out of an agreement regulated by Consumer Credit Act 1974; or

attach of earnings order.
-MUST be enforced in High Court if:
o If sought to enforce PS5,000 or more (for enforcement by execution of goods)
o (IGNORE THIS: though Sime says this PS5,000 limit only applies to enforcement by taking control of goods; and says for enforcement by charging order by sale, must be in High Court if amount is more than PS350,000????)
-In other cases, the judgment can be enforced in the High Court OR County Court
High Court & County Court Jurisdiction Order 199, para 8
-(1) Subject to paragraph (1A) a judgment or order of the County Court for the payment of a sum of money which it is sought to enforce wholly or partially by execution against goods-o (a) shall be enforced in the High Court only where the sum which it is sought to enforce is PS5,000 or more;
o (b) shall be enforced only in the County Court where the sum which it is sought to enforce is less than PS600;
o (c) in any other case may be enforced in either the High Court or the County
Court.
-(1A) A judgment or order of the County Court for the payment of a sum of money in proceedings arising out of an agreement regulated by the Consumer Credit Act 1974 shall be enforced only in the County Court.
Re place of applications (summary of information repeated in the individual provisions below):
-NB, County Court enforcement must be made at the County Court Hearing centre which serves the address where the debtor resides or carries on business, where the creditor wishes to apply for:
o (i) information from a debtor in a County Court money claim;
o (ii) a 3rd party debt order in a County Court money claim or ?

o (iii) a judgment summons
(a) County Court charging order applications (except for those over funds in court)
and (b) attachment of earnings applications ? are made to the County Court
Money Claims Centre (centralised).

CPR 70.4, Enforcement of judgment or order by or against non-party
-If a judgment/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.
CPR 70.6, Effect of order setting aside judgment or order
-If a judgment/order is set aside ? any enforcement of the judgment/order shall cease to have effect, unless court otherwise orders.

CPR 71, orders to obtain information from judgment debtors
Editorial introduction, 71.0.1
-It is for the judgment creditor, not the court, to enforce the judgment.
-Enforcement can be expensive, and abortive enforcement is throwing good money after bad.
-Pt 71 enables the judgment creditor to obtain information from the debtor, for purpose of being able to better decide which method(s) of enforcement to use
(sequentially or simultaneously) under r70.2.
-There must be a judgment (this procedure is not available pre-action)
-Note the requirement of service in r71.3, and to pay travelling expenses if requested.
-R71.8 [failure to comply] simplifies & clarifies procedure if debtor fails to comply with the order; as doubts had been expressed re the former rules being compatible with Art 5 ECHR.
-CA has expressed concern about the way Pt 71 has been operated, and has given guidance for the benefit of judges asked to make a comital order.
CPR 71.1, Scope of this part
-This Pt contains rules which provide for a judgment debtor to be required to attend court to provide information, for the purpose of enabling a judgment creditor to enforce a judgment/order against him.
CPR 71.2, Order to attend court (to obtain information from judgment debtor)
-(1) a judgment creditor may apply for an order requiring:
o (a) a judgment debtor; or

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

To attend court to provide information about:

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