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ENFORCEMENT - Coggle Diagram
ENFORCEMENT
70.1 - General Rules
- Judgement Creditor = person who has obtained/ is entitled to enforce a judgement/ order
- Judgement Debtor = a person against whom a judgement/order was given or made
- Judgement/ Order = includes an award which the court has registered for enforcement, ordered to be enforced or given permission to enforce as if it were a judgement of the court
- Judgement/ order for the payment of money = includes judgement/ order for the payment of costs but does not include a judgement/ order for the payment of money into court.
70.2 - Methods of enforcing judgement/ orders
A judgement creditor may, except where an enactment, rule or PD provides otherwise:
- Use any method of enforcement which is available; and
- Use more than 1 method of enforcement, either at the same time, or one after another
70.2A - Court may order act to be done at expense of disobedient party
- Disobedient party = a party who has not complied with the mandatory order, injunction/ judgement/ order for specified performance of a contract
- Court may direct that act being required to be done, may so far as practicable be done by another person, being
a) The person by whom the order/ judgement was obtained or
b) some other person appointed by the court
- The costs to another person of doing the act will be borne by the disobedient party
- Upon the act being done, the expense incurred may be ascertained in such manner as the court directs
- Execution may issue against the disobedient party for the amount so ascertained and for costs
Note: without prejudice to the court's power under s.39 SCA and court's power to punish disobedient party for contempt.
70.4 - Enforcement by or against a non-party
If a judgement/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.
70.6 - Effect of setting aside judgement/ order
If a judgement/ order is set aside, any enforcement of the judgement/ order cease to have effect unless the court orders otherwise
70.3 - Transfer of proceedings for enforcement
A judgement creditor wishing to enforce a High Court judgement or order in the County Court must apply to the High Court for an order transferring the proceedings
- The most common reason for transferring from the County Court to the High Court for enforcement is to use a High Court Enforcement Officer to levy execution. - Only where the sum which it is sought to enforce is less than £600 or the judgement arises out of an agreement regulated by the Consumer Credit Act 1974 must judgement be enforced in the County Court.
- In other cases, the judgement can and if it is sought to enforce £5000 or more, must be enforced in the High Court
71.1 - Orders to obtain information from judgement debtors
- Rules which provides for a judgement debtor to be required to attend court to provide information for the purpose of enabling a judgement creditor to enforce a judgement or order against him.
Note: it is for the judgement creditor, not the court to enforce judgement
- Part 71 enables the judgement creditor to obtain information from the judgement debtor to better decide which method of enforcement to use.
- This procedure is not available pre action
71.2 - Order to attend court
(1) A judgment creditor may apply for an order requiring—
(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—
(i) the judgment debtor’s means; or
(ii) any other matter about which information is needed to enforce a judgment or order.
- The application may be made without notice; and must be issued in the court or County Court hearing centre which made the judgment or order which it is sought to enforce, except that—
(i) if the proceedings have since been transferred to a different court or hearing centre, it must be issued in that court; or
(ii) if it is to enforce a judgment made in the County Court Money Claims Centre, it must be issued in accordance with s.2 of PD70
- The application notice must be in the form; and contain the information
required by PD71.
- The application may be dealt with by a court officer without a hearing.
- If the application notice complies with requirements above, an order to attend court will be issued.
- A person served with an order issued under this rule must—
(a) attend court at the time and place specified in the order;
(b) when he does so, produce at court documents in his control which are described in the order; and
(c) answer on oath such questions as the court may require.
- An order under this rule will contain a notice in the following terms, or in terms to substantially the same effect—
“If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized.”
71.6 - Conduct of the hearing
- will be questioned on oath by a court officer unless the court has ordered that the hearing shall be before a judge.
- The judgement creditor or his representative MAY attend and ask questions where the questioning takes place before a court officer but MUST attend and conduct the questioning if the hearing is before a judge,
71.8 - Failure to comply with order
If the person fails to attend court, refuses at the hearing to take the oath or to answer any question, or otherwise fail to comply with the order, the court will refer the matter to a High Court judge or a Circuit Judge
- That judge may make a committal order against the person
- A committal order for failing to attend court may not be made unless the judgement creditor has paid travelling expenses and file affidavit.
- If a committal order is made, the judge will direct that:
a) the order shall be suspended provided that the person attend court at a time and place specified and complies with all the terms of the order and the original order.
b) if the person fails to comply with any term on which the committal order is suspended, he shall be brought before a judge to consider whether the committal order should be discharged.
CPR73- Charging Orders
Where a judgement debtor is required to pay a sum of money to the judgement creditor, then the court may make a charging order imposing on such property of the judgement debtor as may be specified in the order, a charge for securing the payment of any money due under the judgement or order.
- 4 Types:
1) Charging order on land
(provides the judgement creditor with security equivalent to a mortgage over the land. It is of course subject to prior mortgages and charges.
2) Charging order on securities
3) Charging order over a judgement debtor's interest in a fund in court
4) A charge over the judgement debtor's interest in partnership property
73.3 - Application can be made without notice.
- The judgement creditor may apply for a simple charging order in respect of more than 1 judgement/ order against the same judgment debtor.
- The application notice must be in the form and contain the information required by PD73 and verified by a statement of truth.
- Where an application is to be made to the County Court, it must be made to the County Court Money Claim Centre, unless the application is for a charging order over an interest in a find in court.
- An application to the County Court for a charging order over an interest in a fund in court must be made to the County Court Hearing Centre where the order/judgement was made
- The charging order dont affect the accrual of judgement interest on High Court/ County Court judgement. Subsequently, the judgement creditor can apply for an order for sale so that subject to prior encumbrances, they can be paid their judgement debt (and accrued interest) out of the proceeds of sale
- Most charging orders are made in the County Court. The only situation where the High Court has exclusive jurisdiction is where the property to be charged is a fund lodged in the Hugh Court. In all other cases where there is a High Court judgement, the County Court has a concurrent jurisdiction to make charging orders.
- An interim charging order is obtained without notice.
a) If the application is made to the CCMCC and relates to the judgement debtor's interest in land, it will be dealt with by a court officer.
b) applications made to the CCMCC other than those which may be dealt by court officers (eg applications for a charging order over securities) will be refereed to a District Judge or Legal Advisor.
- There is a requirement for service of the interim order on the judgement debtor's spouse or civil partner and also the judgement creditor.
- If no response from the judgement debtor after served with application notice by way of an objection to the making of the changing order, the application will be referred to the District Judge or Legal Advisor, without a hearing for the making of a final charging order or such order that is appropriate.
- If an objection is filed, the application will be send to the judgement debtor's home court for fixing of a hearing before the District Judge/ Legal Advisor. Notice of any such hearing will be served by the court on the parties and other person.
Charging order on Matrimonial Home
- If the property is in the sole name of the judgement debtor or owned jointly by spouses who are both judgement debtors, the charge ill be against the land itself.
- A charging order can be made in respect of land which the debtor owns jointly with another (eg spouse). However, the order ranks as a charge on the debtor's beneficial interest rather than upon the land itself
83.2 - Writs and Warrants
Applies to:
- Writs and warrants of control
- Writs of execution
- Warrants of delivery
- Warrants of possession
Writs and warrants of control enable the taking control and sale of goods to recover money.
- There are important distinctions in respect of priority of writs and warrants of control. The priority of a writ of control is determined by when it is delivered to the relevant enforcement officer, whereas the priority of a warrant of control is determined by reference to the date upon which it was issued.
- Note: The court may set aside a writ of control (eg where a writ of control was issued where there was a pending application to set aside the order registering a foreign judgement. The court concluded that the issue of the writ was a step taken to enforce judgement)
A relevant writ and warrant must not be issued without court's permission where
a) 6 years or more have elapsed since the date of judgement/order
b) any change has taken place, whether by death or otherwise, in the parties
(i) entitled to enforce the judgement or order or
(ii) liable to have it enforced against them
c) the judgement/ order is against the assets of a deceased person coming into the hands of that person's executors or administrators after the date of the judgement/ order and it is sought to issue the execution against such assets
(d) any goods to be seized under a relevant writ or warrant are in the hands of a receiver appointed by a court or sequestrator;
(e) under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled (other than where non-compliance with the terms of suspension of enforcement of the judgment or order is the failure to pay money); or
(f) the permission sought is for a writ of control or writ of execution, and that writ is to be in aid of another writ of control or execution.
- An application for permission may be made in accordance with CPR 23 and must—
(a) identify the judgment or order to which the application relates;
(b) if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed;
(c) if 6 years or more has elapsed, state the reasons for the delay in enforcing the judgment or order;
(d) if there is any change that has taken place, state the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order
;
(e) where the case falls within paragraph (c) or (d), state that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that that person has refused or failed to do so;
(f) give such other information as is necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment or order, and that the person against whom it is sought to issue execution is liable to execution on it.
- An application for permission may be made without notice being served on any other party unless court orders otherwise.
- Note: if just because of one event that cause the change in (b) , and applicant seeks to enforce more than judgement/order the applicant need only make one application for permission. But a schedule needs to be attached to the application, specifying all the judgement/ orders in respect of which the application is made, and if the application notice is directed on any person, it need set out only such part of the application as affects the person.
- Where the court grants permission for the issue of a writ of execution or writ of control (“the permission order”); and the writ is not issued within 1 year after the date of the permission order, the permission order will cease to have effect.
- If a permission order has ceased to have effect, the court may grant a fresh permission order.
Enforcement of Judgement
- Judgements are not enforced automatically by the court. It is for the judgement creditor to decide when and how to enforce the judgement.
- These rules on enforcement do not apply against the Crown
- The rules applies to judgments/ orders of the COA as they apply to the High Court
County Court Judgements
a judgment or order of a county court for the payment of a sum of money which it is sought to enforce wholly or partially by execution against goods:
- shall be enforced only in the High Court where the sum which it is sought to enforce is £5,000 or more and the proceedings in which the judgment or order was obtained did not arise out of an agreement regulated by the Consumer Credit Act 1974;
- shall be enforced only in the county court where the sum which it is sought to enforce is less than £600;
- in any other case may be enforced in either the High Court or in a county court.
72.1 - Third Party Debt Orders
- If a judgement debtor is owed money by a 3rd party, the judgement creditor can obtain an order that the 3rd party should pay the judgement creditor.
- The order is obtained without notice on an interim basis. A hearing follows when the court decides whether or not to make a final 3rd party debt order.
- Bank/ Building Society = any person carrying on a business in the course of which he lawfully accepts deposits in the UK
A bank account in credit is a debt due by the bank to its customer. A judgement creditor with the bank details of the judgement debtor can obtain a third party debt order against the bank.
- Any 3rd party or judgement debtor who objects to the making of the order must file and serve written evidence stating grounds for objection.
- Hearings are before a Master/ District Judge
72.2 - Upon the application of a judgement creditor, the court may make a Final Third Party Debt Order requiring a third party to pay to the judgement creditor:
- The amount of any debt due or accruing due to the judgement debtor from the third party or
- So much of that debt as is sufficient to satisfy the judgement debt and the judgement creditor's cost of the application
- The court will not make such an order without first making an interim third party debt order
- Note: It is not possible to obtain a third party debt order against a bank account in the joint names of the debtor and his wife. This is in contrast with execution
72.3 - Application for a third party debt order
- Application may be made without notice and must be issued in the court which made the judgement/order which it is sought to enforce, except that:
(i) if the proceedings have since been transferred to a different court or hearing centre, it must be issued in that court; or
(ii) if it is to enforce a judgment made in the County Court Money Claims Centre, it must be issued in accordance with s.2 of PD70
- The application notice must be in the form, contain the information required by PD72 and be verified by a statement of truth
84.3 - Enforcement by taking control of goods
- shall be made in accordance to CPR 23
- Where there is no pre-existing proceedings, an application must be made to the County Court
- Where there are pre-existing proceedings, the application must be made to the High Court or County Court in accordance to CPR 23.2
In simple terms the taking control of goods process is as follows
• Enforcement agent gives notice of enforcement to the debtor
• Debtor either makes contact with the enforcement agent and pays the debt or enters into an arrangement for payment which is maintained or the enforcement agent takes control of goods.
• Goods may be taken control of by the enforcement agent in four ways
- securing goods on premises,
- securing goods on a highway,
- removing goods and
- storing them elsewhere or by entry into a controlled goods agreement
The enforcement agent may only do this within the prescribed period and on any day of the week within certain hours
- the goods are sold at public auction
- the proceeds of sale are used to pay the amount outstanding including the debt and costs
Note: Items that do not belong to the debtor are protected from seizure by the enforcement agent.
At various junctures the enforcement agent may make applications to the court:
- to shorten the period for notice to the debtor of enforcement
- to extend the prescribed period within which the enforcement agent may take control of goods
- to take control of goods during prohibited periods
- to enter, re-enter or remain on premises outside permitted hours
- to re-enter premises giving less than the minimum period of notice
- to issue a warrant in respect of specified premises and to use reasonable force to enter premises
- to use reasonable force in respect of goods on a highway
- to sell other than by public auction
- to deal with abandoned goods
- to obtain exceptional disbursements
- The debtor, creditor, any co-owner and enforcement agent may also make applications to resolve disputes about the co-owner’s share of proceeds and about the recoverable fees and expenses
- The debtor may make an application for a remedy in relation to goods taken into control
Controlled Goods Agreement
- A controlled goods agreement is one of the 4 ways that an enforcement agent may take control of goods.
- This is an agreement under which the enforcement agent and the debtor agree terms for the repayment by the debtor of the sum outstanding under the judgment or order.
- The agreement must be in writing and be signed by the enforcement agent and the debtor, a person authorised by him (over 18 years old), or a person in apparent authority on premises used, in part or wholly, to carry on a trade or
- The debtor must be provided with a copy of the agreement, regardless of whether or not it is the debtor or someone with authority or apparent authority who actually enters into the agreement
89.3 - Attachment of Earnings
- An application to the County Court for an attachment of earnings order must be made to the County Court Money Claims Centre
- The County Court can make an attachment of earnings order to secure payments under a High Court or County Court judgment where the judgment debt, or the amount remaining payable under the judgment is not less than £50, or payments under an administration order.
- The majority of attachment orders are made in the County Court and, administratively, there is a centralised system for collection. The procedure is very effective where the debtor is in employment with sufficient earnings. For a creditor the procedure is very simple, usually involving only the completion of the Request for an Attachment of Earnings Order and payment of the prescribed fee: the court does the rest.
- Applications must include a certificate of the amount of money remaining due under the judgement/order and that the whole/ part of any installment due remains unpaid.
- If an attachment of earnings order is sought to enforce an order of a magistrates court, the applicant must also file with the application:
a) a certified copy of the order and
b) a witness statement verifying the amount due under the order or if payments under the order are required to be made to the designated officer of the magistrates court, a certificate by that designated officer to the same effect/
Consequences of Attachment order
- an order directed to a person who appears to the court, or as the case may be the fines officer, making the order to have the debtor in his employment and shall operate as an instruction to that person—
(a) to make periodical deductions from the debtor’s earnings
(b) at such times as the order may require, or as the court, or the fines officer as the case may be, may allow, to pay the amounts deducted to the collected officer of the court, as specified in the order.
- the relationship of employer and employee shall be treated as subsisting between two persons if one of them, as a principal and not as a servant or agent, pays to the other any sums defined as earnings
- An attachment of earnings order shall contain prescribed particulars enabling the debtor to be identified by the employer.
- Except where it is made to secure maintenance payments, the order shall specify the whole amount payable under the relevant adjudication (or so much of that amount as remains unpaid), including any relevant costs.
- The order shall specify—
(a) the normal deduction rate, that is to say, the rate (expressed as a sum of money per week, month or other period) at which the court thinks it reasonable for the debtor’s earnings to be applied to meeting his liability under the relevant adjudication; and
(b) the protected earnings rate, that is to say the rate (so expressed) below which, having regard to the debtor’s resources and needs, the court thinks it reasonable that the earnings actually paid to him should not be reduced.