This guide provides a summary of the main enforcement options that may be available to you if you have obtained a civil Court judgment or order in your favour. This guide deals primarily with the enforcement of money judgments.
How do I enforce a Court judgment or order I have obtained?
If you obtain a Court judgment or order requiring another party to take certain actions or to pay a specified sum that order does not in and of itself guarantee that the other party will comply with the order or that you will receive payment. Where a party does not comply, you may need to take steps to enforce the order.
If you as the judgment creditor are seeking to enforce a judgment there are a number of enforcement methods available to you under the Civil Procedure Rules (“CPR”), which are the rules governing the conduct of litigation in England and Wales. The methods of enforcement may be used either concurrently or consecutively (subject to some exceptions). These options include taking control of goods, obtaining charging, third party debt or attachment of earnings orders, or starting insolvency or contempt of Court proceedings.
STEPS BEFORE ENFORCEMENT
Is the debt enforceable?
Some enforcement methods require the judgment debtor to be given an opportunity to pay the debt before you can begin utilising enforcement methods. The judgment or order itself will usually indicate the terms of payment and these should be reviewed before deciding whether payment is due and enforcement methods are available.
Does the judgment debtor have the means to pay?
As a preliminary step, you should consider whether the judgment debtor has sufficient assets to pay the debt due under the judgment order. If you are able to identify that the judgement debtor has assets then consider where those assets are located and what assets they are – the answers to those questions are likely to be a factor in helping you decide on what enforcement option to take.
How do I obtain information about a judgment debtor’s financial position after I have obtained judgment?
If you lack information about the judgment debtor’s assets then you can apply to the Court for an order to request that the judgment debtor is called into Court for a formal interview to provide information concerning their financial situation. If an order is made, the judgment debtor will be required to attend Court to be questioned on oath by a Court officer. Failure to comply with the order may result in the judgment debtor being held in contempt of Court and issued with a fine or, imprisonment, among other things.
To apply for an order, you will need to provide the name and address of the 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. You must also arrange for the order to be personally served on the judgment debtor and provide an affidavit to the Court confirming this has been done.
Once you have established that the judgment debtor is likely to have the means to pay, there may be several options available to you. We comment on some of the most common methods here, though this is not an exhaustive list – we would be happy to discuss additional options that may be available.
OPTIONS FOR ENFORCEMENT
Taking control of goods
This is a popular method of enforcing a judgment debt as it can be carried out quite quickly. This option entails the issue of a Court document (in the High Court a ‘writ of control’ and in the County Court a ‘warrant of control’) which commands an enforcement agent (i.e. a bailiff) to take control of and sell the judgment debtor’s goods, and use the proceeds to pay the judgment debt. You may find this option is worthwhile if the judgment debtor has sufficiently valuable goods that can be sold at auction to raise money to settle the debt.
A charging order
You could seek 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. So, if you obtain a charge over the property your debt will be paid out of the available proceeds of sale. However, a charging order does not in and of itself compel the judgment debtor to sell the property. Also, 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. The first stage involves an application to the Court for an interim (i.e. temporary) 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, stage two involves a Court 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. If a final order is obtained, you could issue additional proceedings to request a Court Order forcing the sale of the property – though an Order along these lines is at the Court’s discretion and is usually regarded as an extreme sanction, especially for residential premises.
A third-party debt order
You could consider obtaining a third-party debt order which can be made against the judgment debtor’s third party creditors, such as their bank or building society. The Court will order the debtor’s third-party creditor to pay you instead of the debtor, to the value of your debt. This involves going through a two-stage process similar to the charging order.
An attachment of earnings order
An attachment of earnings order requires a judgment debtor’s employer to pay you out of wages due to the judgment debtor. This is done until the debt is paid. This can be a popular enforcement method where the judgment debtor is a salaried employee as it is relatively simple and inexpensive.
Insolvency: bankruptcy or winding up
Winding up and bankruptcy are also steps you are entitled to take if a judgment remains unsatisfied. Winding up applies to limited companies and bankruptcy applies to a person or an unincorporated body such as a partnership.
You can apply for bankruptcy if an individual debtor owes you more than £5,000; to apply to wind up a company it needs to owe you £750 or more. In both cases, you can evidence the individual’s or the company’s inability to pay the debt by serving a Statutory Demand (which is a document in a prescribed form) making a demand for payment of the amount owed. Once the Demand has been served on the judgment debtor they have a fixed number of days to respond to the Demand. If they fail to make payment or don’t apply to have the Demand set aside within the relevant time-frame you can present a winding up or bankruptcy petition at Court – the unpaid Statutory Demand serves as proof that the judgment debtor is unable to pay its debts and is insolvent. If the judgment debtor is wound up or made bankrupt, an Official Receiver will be appointed who will take control of the debtor’s affairs. The debtor’s assets are sold and if there are insufficient assets to meet the debts, each creditor (including you) would receive a pro rata percentage of what they are owed.
Insolvency can serve as a powerful motivator for an individual or company to pay a creditor what they are owed. For example, an undischarged bankrupt must declare their 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. Bankruptcy orders are usually discharged after one year. In certain circumstances, the Official Receiver or the Secretary of State can apply for a Restrictions Order. This places additional restrictions on the debtor, for example the person subject to the order cannot act as a director of a company. The duration of a Restrictions Order can vary between two to fifteen years. These significant implications may cause the debtor to pay to escape bankruptcy.
Contempt proceedings
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 contempt of Court must be made to the Court supported by an affidavit and other relevant evidence, which must be personally served on the defendant.
Strictly speaking, obtaining an order in contempt proceedings is not an enforcement method as such – rather it’s a sanction imposed on the debtor for failing to comply with a judgment or order. However, it can be an effective way of recovering a debt because the debtor might try to clear themselves of any contempt of Court proceedings by settling the relevant debt.
How do I enforce an English judgment abroad?
If you are seeking to enforce a debt which is overseas there are additional complexities to consider. There are various international conventions which govern the enforcement of an English judgment abroad. The rules are complex and differ for each country. The position will be dependent on the terms of any applicable international convention or treaty with the relevant country. In most cases, you will need advice from a local lawyer in the state where enforcement is sought. We have a number of connections with overseas firms and would be more than happy to facilitate this advice.
As a result of Brexit, the position is now more complex for when it comes to enforcement in EU member states too. Currently, English judgments made in proceedings started after 31 December 2020 will be governed by either The Hague Convention, the reciprocal enforcement regime, or the national rules in each state where enforcement is being sought. Again, specific advice will be required.
About us
Our experienced lawyers would be happy to help you to decide on the best enforcement method for your particular circumstances to maximise your prospects of recovering your debt, and we could also represent you in any enforcement proceedings.
If you have any questions about this guide or any other matters please do not hesitate to contact one of the members of our Dispute Resolution Team at [email protected] or contact:
Robert Oakley [email protected]