Obtaining a judgment or order of the Court ordering a party to take certain action or to pay a specified sum does not guarantee that they will comply with the order or that you will receive payment. Where a party does not comply, steps may need to be taken to enforce the order.
The party seeking to enforce a judgement (the “judgement creditor”) may use any method of enforcement available under the Civil Procedure Rules. The methods of enforcement may be used either concurrently or consecutively. They are discussed further below.
Before taking action to enforce a judgment (and ideally before embarking on the action in the first place), it is important to consider whether the other party (the ‘judgment debtor’) has the means to pay. If it does not have any assets or income then it is unlikely that you will be able to recover any money that it may be ordered to pay.
How do I obtain information about a judgment debtor’s financial position after I have obtained judgment?
As a preliminary step (post judgment), it may be appropriate to request that a judgment debtor is called into Court for a formal interview to obtain information concerning their financial situation. You will need to provide the name and address of a judgment debtor, details of the judgment you have against them, a list of any particular questions you want to put to them, and any documents you want them to bring to Court.
The Court will make an order which contains a time, date and place for the judgment debtor to attend to be questioned. The order will also contain a warning to the judgment debtor (or officer of a corporate judgment debtor) that failure to comply with the order may result in a fine and/or imprisonment. You must arrange for the order to be personally served on the judgment debtor and provide an affidavit to the Court confirming this has been done.
The judgment debtor will be asked to swear an oath, or affirm, before the questioning begins. A Court officer will then ask the judgment debtor relevant questions.
Once you have established that the judgment debtor has the means to pay, there are several options available.
In summary, they include:
A warrant of execution
This involves instructing a Court bailiff to collect the money from the judgment debtor. This option may only be worth pursuing if the judgment debtor will allow the bailiff access to the premises (for residential properties) and has sufficiently valuable goods that can be sold at auction to raise money to settle the debt.
A charging order
This is an order of the Court placing a ‘charge’ on the judgment debtor’s beneficial interest in property, such as a house, a piece of land or shares. A charging order in respect of land can be registered as a restriction with the Land Registry.
A registered charge (for example a mortgage company’s charge) over a property means that if the property is sold, the charge will have to be paid before any of the proceeds of the sale will be passed to the judgment debtor. However, a charging order does not, in itself, have this effect and does not compel the judgment debtor to sell the property. Furthermore, if there are already charges on the property when the charge is registered, for example arising from a legal mortgage, then those charges will take priority over yours.
An application for a charging order involves two stages. First, you will need to apply to the Court for an interim charging order, which can be registered at the Land Registry. At this stage the judgment debtor will not be given any notice of the application. Once an interim order has been made there will be a hearing at which the judge will consider whether a final charging order should be granted. The judgment debtor can make submissions at this hearing and ask that the interim order be discharged. The Land Registry can be notified of the outcome. Once a final order is obtained, proceedings can be issued requesting an order of the Court forcing the sale of the property. However, this is regarded as an extreme sanction especially for residential premises, and an Order for Sale will be at the Court’s discretion, taking into account all of the circumstances.
A third party debt order
A third party debt order can be made against third party creditors of the judgment debtor, such as their bank or building society. The Court will order the debtor’s third party creditor to pay you rather than the debtor. This is a two stage process, similar to an application for a charging order.
An attachment of earnings order
An attachment of earnings order requires that payment shall be made to the judgment creditor directly from a judgment debtor’s employer, out of wages due to the judgment debtor.
Bankruptcy or winding up
Winding up and bankruptcy are also ways of enforcing a judgment. Winding up applies to limited companies and bankruptcy applies to a person or an unincorporated body such as a partnership. You should first serve a Statutory Demand, which is a document in a specific form requesting payment. The judgment debtor then has a fixed number of days in which to respond. If they fail to do so you can present a winding up or bankruptcy petition at court. The Statutory Demand serves as proof that the judgment debtor is unable to pay the debt. If the judgment debtor is wound up or made bankrupt, an Official Receiver will be appointed who will take control of their affairs. The debtor’s assets are sold and if there are insufficient assets to meet the debts, each creditor gets a pro rata percentage of what they are owed. Bankruptcy orders are now usually discharged after one year. Unless the Official Receiver applies for a Restriction Order during the period of the order, the person subject to the order cannot serve as a director of a company. An undischarged bankrupt must declare his status when seeking credit of more than £500, including in hire purchase and conditional sale agreements. Their credit status is also likely to be affected for a period after the bankruptcy order is discharged.
Where a defendant has failed to comply with an order of the Court, the Court has the power to punish them for contempt of Court by fining them and/or committing them to prison. If the contempt was committed by a company, its directors or any other officers may be subject to committal proceedings. An order to pay money is not usually enforceable by committal, but orders for judgment debtors to attend Court to give evidence about their means or attend Court for the consideration of an attachment of earnings order against them are. An application for committal must be made to the Court supported by an affidavit and other relevant evidence, which must be personally served on the defendant.
How do I enforce an English judgment abroad?
There are various international conventions which govern the enforcement of an English judgment abroad. The rules are complex, although the procedure for enforcing a judgment in an EU member state is quicker and easier than in other countries. Elsewhere, the position will be dependent on the terms of any applicable international convention or treaty with the relevant country.
Broadly, to enforce in another EU member state a judgment for a claim which was contested, you will need to apply to the court for a declaration of enforceability. However, where there is a judgment or court settlement for a claim for a specified sum of money which was uncontested, you may instead apply to the court for certification of the judgment as a European Enforcement Order (EEO). Service and enforcement against the debtor will take place according to the national rules of that Member State.