When is enforcement used?
If, having obtained a judgement in the County Court or the High Court the judgement debtor (the party against whom the judgement has been obtained) does not make payment voluntarily, the judgement creditor (the party who brought the claim) can enforce the judgement in order to attempt to secure payment.
How can a judgement be enforced?
There are a number of different ways in which a judgement can be enforced. The most common methods used are as follows:
Warrant of Execution / Writ of Fieri Facias
This method involves a Bailiff (if the judgement was obtained in the County Court) or a High Court Enforcement Officer (if the judgement was obtained in the High County or if the matter has been transferred from the County Court to the High Court for enforcement purposes) attending the judgement debtor’s home or premises and seizing and then selling goods to the value of the judgement.
Before the Bailiff or High Court Enforcement Officer can seize any goods it is necessary for the judgement creditor to obtain from the court a Warrant of Execution (if the judgement was obtained in the County Court) or a Writ of Fieri Facias (if the judgement was obtained in the High Court).
The main advantage of this method of enforcement is that it is relatively inexpensive. The main disadvantages are that not all types of goods can be seized (for example tools of the judgement debtor’s trade cannot be seized) and a Bailiff or High Count Enforcement Officer cannot gain entry to a house or premises by force.
A charging order operates in a similar manner to a mortgage and, therefore, can only be used where the judgement debtor owns a property.
An application for a charging order is a 2 stage process. The first stage involves the making of an interim charging order and the second stage involves the making of a final charging order.
The first stage is essentially a paper exercise and is normally done without giving any notice to the judgement debtor. This stage involves the judgement creditor making an application to the court for an interim charging order. Assuming that the application complies with the necessary formalities the judge will grant an interim charging order and list a hearing at which a judge will consider whether to make a final charging order or not. The judgement debtor will be given notice of the hearing and will be able to make representations as to why a formal charging order should not be made.
A charging order can be registered with the Land Registry and if and when the judgement debtor sells the property, if there is sufficient equity in the property, the monies owed under the judgement are paid to the judgement creditor (the person who is owed the money) together with interest from the date of the charging order.
The main disadvantage of a charging order is that it gives the judgement creditor no automatic right to sell the property. The judgement creditor may, therefore, have to wait for many years before it receives payment.
Once a charging order has been obtained the judgement creditor can apply to the court for an order for the sale of the property. However, in practice the courts rarely make such orders.
Third Party Debt Orders
This method is used to enforce a judgement where a third party owes money to the judgement debtor. Where a third party debt order is made by the court, the third party is required to make payment direct to the judgement creditor.
This method is rarely used in practice as the existence of a third party debt is generally not known to judgement creditors.
Attachment of Earnings
This method may be used where a judgement debtor is an individual and is in paid employment. An attachment of earnings order can be obtained from the County Court but not the High Court. Where an attachment of earnings order is made the judgement debtor’s employer will be required to deduct a regular sum from the judgement debtor’s wages or salary and pay that sum direct to the judgement creditor until the monies owing under the judgement have been paid. The court will decide how much should be deducted when it makes the order.
The main disadvantages of this method are that it can take some time to obtain payment in full and the procedure can not be used where the judgement debtor is self-employed.
Which is the best method of enforcement?
The most effective method of enforcement will depend upon the circumstances and known assets of the judgement debtor in a particular case as well as the amount of the judgement.
A judgement creditor can apply to the court for an order to obtain information from the judgement debtor, or in the case of a company or business, an officer of the company or business.
Where an order is made the judgement debtor will be required to attend court and provide details of their assets and income. The details will normally be provided to a member of the court’s office staff rather than a judge but will be given under oath. The judgement creditor is allowed to attend and will normally be allowed to ask questions. If the judgement debtor fails to attend court or refuses to answer questions under oath the matter they may ultimately face imprisonment.
In most cases the judgement creditor is free to decide which method of enforcement to use. A judgement creditor can, in most cases, use more than one method of enforcement, either at the same time or one after the other.