When is enforcement used?
If, having obtained a judgment in the County Court or the High Court, the judgment debtor (the person or business against whom the judgment has been obtained) does not make payment voluntarily, it will be necessary to enforce the judgment in order to attempt to secure payment. A judgment can only be enforced effectively if the judgment debtor has the means or assets available to make payment.
Methods of Enforcement
There are a number of methods for enforcing a judgment. The most common methods used are as follows:
Warrant of Execution / Writ of Fieri Facias
This method involves a Bailiff (if the judgment was obtained in the County Court) or a High Court Enforcement Officer (if the judgment was obtained in the High County) attending the judgment debtor’s home or premises and seizing and then selling goods to the value of the judgment. Before the Bailiff or High Court Enforcement Officer can seize any goods it is necessary to obtain from the court a Warrant of Execution (if the judgment was obtained in the County Court) or a Writ of Fieri Facias (if the judgment 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, such as tools of the judgment debtor’s trade, and a Bailiff or High Count Enforcement Officer is not allowed to gain entry to a house or premises by force.
A charging order operates in a similar manner to a mortgage and is, therefore, used where the judgment debtor owns a property. A charging order can be registered with the Land Registry and if and when the judgment debtor sells the property, if there is sufficient equity in the property, the monies owed under the judgment are paid to the judgment 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 judgment creditor no automatic right to sell the property. The judgment creditor may, therefore, have to wait for many years to receive payment.
Once a charging order has been obtained it is open to the judgment creditor to apply to the court for an order for sale of the property. However, in practice the courts rarely make orders for sale.
Third Party Debt Orders
This method is used to enforce a judgment where a third party owes money to the judgment debtor. Where a third party debt order is made by the court, the third party is required to make payment direct to the judgment creditor.
This method is rarely used in practice as the existence of a third party debt is generally not known to judgment creditors.
Attachment of Earnings
This method may be used where a judgment debtor is an individual and is in paid employment. An attachment of earnings order is available in the County Court but not in the High Court. Where an attachment of earnings order is made by the court the judgment debtor’s employer will be required to deduct a regular sum from the judgment debtor’s wages or salary and pay that sum direct to the judgment creditor until the monies owing under the judgment have been paid. The court decides how much should be deducted.
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 judgment debtor is self- employed.
Which method of enforcement should be used?
The most effective method of enforcement will depend upon the circumstances and known assets of the judgment debtor and the amount of the judgment. For example, if the judgment debtor is known to own a car worth say £5,000 and the amount of the judgment is £3,000 then enforcement by way of a warrant of execution may be the preferred method of enforcement. If on the other hand the judgment debtor owns a property and the amount of the judgment is £100,000 then enforcement by way of a charging order may be a more effective method of enforcement.
In most cases the judgment creditor is free to decide which method to use. It is open to the judgment creditor, in most cases, to use more than one method of enforcement, either at the same time or one after the other.
Finding out what income or assets the judgment debtor has
In many cases the judgment creditor will not know what income or assets the judgment creditor has, if any.
If it is not known whether a judgment debtor has any income or assets or if the judgment creditor wishes to find out more about the judgment debtor’s financial position it is open to the judgment creditor to apply to the court for an order to obtain information from the judgment debtor, or in the case of a company or business, an officer of the company or business.
Where an order is made the judgment debtor will be required to attend court and provide details of their assets and income. The details will generally be provided to a member of the court’s office staff rather than a judge and will be given under oath. The judgment creditor is allowed to attend and will generally be permitted to ask questions. If the judgment debtor fails to attend court or refuses to answer questions under oath the matter will be referred to a judge who has the power to make a committal order (an order under which the judgment debtor is to be imprisoned for contempt of court). The judge will direct that the committal order be suspended for a period of time to afford the judgment debtor the opportunity to attend court and provide the required information under oath. If the judgment debtor still fails to comply they may face imprisonment.
Information as to a judgment debtor’s assets and finances is also commonly obtained by the following means:
If the judgment debtor is a limited company a copy of the most recent accounts filed by the company can be obtained from Companies House. These should be treated with caution as the company’s financial position may have declined since its accounts were filed.
Land Registry Searches
If the judgment debtor owns a property it is likely to be registered with the Land Registry. If the property is registered an Office Copy can be obtained from the Land Registry. An office copy will reveal the owners of a property, the price paid for the property if it was purchased after December 1994 and the existence of any mortgages or charges on the property. An office copy will not reveal the amount of any mortgages or charges and, therefore, if the property is subject to a mortgage or charge it is not possible to obtain confirmation from the Land Registry as to whether there is any equity in the property.
Enquiry agents (often known as private detectives) are often employed to make enquiries as to the financial circumstances and assets of judgment debtors. The effectiveness of an enquiry agent will often depend upon the nature of the judgment debtor and the extent of the information provided by the judgment creditor. Enquiry agents’ charges are dependant upon the extent of the information required by the judgment creditor.