What are enforcement orders and the different types
The nature of enforcement orders
For the litigation cycle to be complete it is necessary that the courts have powers to ensure compliance by all parties with judgments and orders made against them.
In practice most litigants will reasonably promptly abide by rulings of the courts against them. However, different methods appropriate for different circumstances have been devised to develop the courts’ powers of enforcement. The types of orders currently available to the courts are:
Execution against goods:
Execution against goods
Whenever execution of goods is ordered in the County Court, the procedure is done by way of warrant of execution. When such order is dealt with in the High Court, it is done by way of writ of fiery facias (abbreviated to fi. fa.).
In practical terms this means that the bailiff, armed with the warrant of execution, or the enforcement officer, armed with the writ of fi.fa., will attend the judgment debtor’s premises and seek to gain entry.
They can only enter lawfully without forcing their way in. Once inside, they can seize sufficient goods to satisfy the judgment claim.
The types of goods that can be seized include money, bills of exchange, promissory notes and bonds but exclude protected goods. Protected goods for the purposes of these orders include clothing, bedding, household equipment and other provisions necessary for the basic domestic needs of the debtor and his family.
Further, goods belonging to other members of the debtor’s family may not be seized.
After seizing the goods
Once the goods have been seized, the bailiff or the enforcement officers have two options. They can either take them away or leave them at the premises having entered into a walking possession agreement with a responsible person in the building.
Under that agreement, the responsible person agrees not to remove or damage the goods. Further, he authorises the bailiff or enforcement officer to enter the premises at any time to complete the enforcement process.
If the goods are taken away, the debtor will be provided with an inventory. Those goods will then be sold by an appointed broker or appraiser through a public auction.
Third party debt order
This method is used as the most appropriate means of enforcement when a judgment debtor is owed money from a third party, such as a bank or a trade debtor.
Third party orders follow a two-stage process. Firstly, without notice application is made and considered by a judge without a hearing, who may make an interim third party debt order. The order serves the purpose of directing the third party not to make any payment which reduces the amount he owes the judgment debtor to less than the amount specified in the order. The amount specified will be the total outstanding on the judgment to be enforced, including fixed costs.
Following the grant of interim order, the third party and the debtor need be notified. Afterwards, in the second stage the court considers whether to make a final third party debt order.
The final order is enforceable as an order to pay money. Further, the third party is discharged against the judgment debtor to the extent of the amount paid under the order.
A charging order imposes a charge on a specified property of a judgment debtor for the purpose of securing the amount under the judgment debt.
The property that can be charged under a charging order includes a beneficial interest in land as well as beneficial interest in government stock or company shares, debentures or other securities.
Making the order
Such orders are normally made in two stages. Firstly, an interim order is made usually without a hearing following the grant of which a date will be fixed for a hearing for a final charging order to be considered.
Whenever a final order is made, it operates as a charge on the relevant property, effectively making the judgment creditor a secured creditor. However, that order does not provide an immediate entitlement to any money, but it does provide a valuable safeguard in case the debtor becomes insolvent before paying. Further, it provides foundation for proceedings for enforcement by sale.
Enforcement by sale
Proceedings to enforce a charge including when such is obtained through a charging order have to be started by separate proceedings. These are normally commenced by a Part 8 claim.
If those proceedings are fully contested and the claim subsequently proceeds to trial, then an order may be made for the sale of the charged property.
Attachment of earnings as an enforcement order
It is an order directed towards the employer of the judgment debtor requiring him to make periodic deductions from the debtor’s earnings.
Attachment of earnings orders are established as the most appropriate enforcement method where the judgment debtor has no substantial assets other than salary. In essence, this is a pre-condition for the consideration of such order.
An attachment of earnings can be characterised by two essential components. Firstly, it provides for the judgment debtor’s protected earnings rate. Secondly, the order estimates a normal deduction rate.
Protected earnings rate
This is related to the debtor’s personal needs. It is the amount that must be earned on a weekly or monthly basis before any money could be deducted.
The amount could take into account the persons’ lifestyle as well as family circumstances and in particular whether the debtor is caring for other members of his family. Further, it should not be oppressive on the debtor and his family.
Normal deduction rate
The normal deduction rate provides for the amount that the employer is required to deduct from the debtor’s earnings. The rate could be based on weekly or monthly instalments.