Enforcement orders

What are enforcement orders?

In many cases where a court order is made against an individual, that individual does not comply, or refuses to comply. An Enforcement Order is a further court order effectively ordering a party to comply with a judgment or order made against them.

In practice, most litigants will comply with a court ruling reasonably promptly. Where they fail to do so, there are different methods of enforcement available depending on the circumstances. In debt cases, the court can make various orders as follows:

The creditor can also use the execution against goods method of enforcement.

Execution against goods

The most common type of enforcement is by way of execution against goods because it is relatively quick, simple and straightforward. It does not require a judge’s decision but it can also be used alongside other formal enforcement orders.

What’s the procedure?

The procedure for execution of goods in the County Court is by way of warrant of execution and, in the High Court, by way of writ of fieri facias (abbreviated to fi. fa.). In practical terms, this means that the bailiff (with the warrant of execution), or the enforcement officer (with the writ of fi.fa.), will attend the judgment debtor’s premises and seek to gain lawful entry (they cannot use force to gain entry).

Once inside, they can seize enough goods of value to satisfy the judgment claim. Goods that may be seized include money, bills of exchange, promissory notes and bonds, but not ‘protected’ goods (clothing, bedding, household equipment and other provisions necessary for the basic domestic needs of the debtor and their family). In addition, goods belonging to other members of the debtor’s family may not be seized.

Once the goods have been seized, the bailiff or the enforcement officer has two options: either take them away, or leave them at the premises having entered into a walking possession agreement with a responsible person in the building. This means the goods now belong to the bailiff and can be removed at any time. If the goods are removed, the debtor will be given an inventory, and the goods may then be sold by an appointed broker or appraiser through a public auction.

Third party debt order

This is 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.

The procedure

Third party debt orders follow a two-stage process. Firstly, a ‘without notice’ application is made, and considered by a judge without a hearing, who may make an interim third party debt order. The order directs the third party not to make any payment which reduces the amount owed to 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 must be notified. In the second stage, the court considers whether to make a final third party debt order. A 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.

Charging orders

A charging order means a legal charge may be entered on the registered title of a specific 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

Orders are normally made in two stages. Firstly, an interim order is made usually without a hearing, following which a date will be fixed for a hearing when a decision as to a final charging order will be considered.

If a final charging order is made, it operates as a charge on the relevant property making the judgment creditor a secured creditor. This provides security because the debtor must pay off the creditor when a sale takes place.

Enforcement by sale

Proceedings to enforce a charge imposed following a charging order must be started by separate proceedings, normally by commencing a Part 8 claim. If those proceedings are contested and the claim subsequently proceeds to trial, an order may be made for the sale of the charged property. The creditor will then be paid out of the sale proceeds.

Attachment of earnings order

This is an order directed towards the employer of the judgment debtor requiring them to make periodic deductions from the debtor’s earnings. Attachment of earnings orders are typically used as a last resort where the judgment debtor has no substantial assets other than their wages.

An attachment of earnings order provides for the judgment debtor’s protected earnings rate, and 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 individual’s lifestyle as well as family circumstances and, in particular, whether the debtor is caring for other family members. Further, it should not be oppressive on the debtor and their 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.