#10355 - Enforcement - BPC Civil Litigation

ENFORCEMENT

• judgment creditor can use any method AND several methods

ENFORCEMENT IN HC + COCO COMPARED

• largely same

• attachment of earnings orders only available in coco

• HC: enforcement officers (independent of courts)

• coco: bailiffs (employed by MoJ)

ENFORCEMENT OF MONEY JUDGMENTS

Transfer

1. coco HC if:

   1. execution against goods sought of judgment >5k

-----OR------

2. enforcement of charging order by sale sought where amount owing > 30k

2. HC coco if:

1. execution against goods sought of judgment <600; OR

2. charging order sought where judgment debt is <5k; OR

3. attachment of earnings order sought

3. coco debtor's home coco - if judgment creditor wishes to apply for:

1. info from debtor in designated money claim; OR

2. 3rd party debt order in a designated money claim; OR

3. charging order; OR

4. attachment of earnings order; OR

5. judgment summons

Stay of execution

• judgment debtor can apply if unable to pay OR alleges otherwise inexpedient to enforce order

• the application: written evidence + statement of means

• the effect: stay of execution pending payment by instalments

Application to obtain financial information from debtors (Part 71)

• debtor attends court to answer Qs about financial status

• used if: little known about debtor's finances

• procedure

1. application notice

2. application dealt with by court officer without hearing (r71.2)

3. court officer makes order requiring debtor to attend court and answer Qs / produce documents

4. creditor serves order personally (PD 71 para 3)

5. creditor must swear affidavit AND fill in questionnaire

6. THE HEARING

   • usually without judge - court officer asks questions

   • may be with judge if compelling reasons

7. failure to comply with order = contempt (r71.8)

Execution against goods (generic term = warrant of execution) - if attachment of earnings order in place, need permission to enforce

• HC: writ of fieri facias (fi. fa.)

• coco: warrant of execution

• issue of writ / warrant

  • issue =

    • produce documents:

      • HC: draft writ (praecipe) AND judgment

      • coco: warrant of execution

----AND----

• pay fee

----AND----

• if 6 years have elapsed since judgment, obtain permission to enforce

• seizing goods

1. gain lawful entry

   • CAN'T break outer doors, force way in (unless commercial premises)

2. seize goods to satisfy judgment AND costs of enforcement

   • CAN'T take goods necessary for employment OR basic domestic needs

     • if debtor claims seized goods necessary has 5 days to challenge

3. may be via agreement to take walking possession (person in house authorises bailiff to re-enter at any time to take goods - can use force)

• removal + sale

  • on payment, goods released (threat of sale sometimes enough)

  • usually, goods removed + sold by publicly advertised auction

Administration orders - coco only - often combined with attachment of earnings order

• coco has power to order: of own motion OR on application of creditor / debtor

• restricts creditors named in order from joining bankruptcy petitions against debtor

• usually provides for debtor to pay by instalments, with periodic dividends to named creditors

Attachment of earnings = instructing to D's employer - coco only - whilst in force need permission to enforce warrant of execution against goods - often combined with administration order

• use if debtor employed BUT has no substantial assets

• coco only - transfer HC claims to coco (see above)

• can only make if debtor has failed to make 1+ payments (unless debtor applies)

• earnings attachable

  • wages, salaries, fees, commission, overtime payable under contract of service

  • SSP

  • occupational pension

  • self-employed income

  • state pensions, benefits, allowances

• procedure

1. A applies + pays fee

   • debtor files means Q at court + serves on A

2. DJ considers and makes order at a hearing

• interaction with other methods of enforcement

  • debtor may be ordered to file list of creditors (if several), with view to making administration order (see above)

  • whilst attachment of earnings order in force, need permission of court before warrant of execution against goods will be issued for judgment debt

Third-party debt orders

• effect = transforms debt payable by 3rd party debtor into obligation to pay debt to judgment creditor

• common - but NOT limited to - 3rd parties who are responsible bodies e.g. banks

• attachable money (i.e. what order can be obtained over)

  • money in bank account

  • money in joint bank account

  • judgment debt

  • rent due to landlord

  • action for damages

  • matrimonial maintenance orders

  • salary

• procedure

1. application without notice for interim order - judge considers without hearing

   • order only made if evidence of specific account (a/c no, sort code etc.) (PD 72 para 1.3)

   • if 3rd party is a bank / building society, must do search to ID all debtor's accounts

   • must serve order on 3rd party and debtor freezes debts

2. anyone objecting to the final order - must file + serve written evidence not less than 3 days before the final hearing

3. hearing on notice for final order - enforceable as order to pay money

   • may refuse if inequitable to grant e.g. debtor insolvent

Charging orders

• = order imposing on any such property specified in order an equitable charge for securing the payment of any money due or to become due under a judgment or order

• secures judgment debt, does NOT produce money of itself

• chargeable property

  • beneficial interest in:

    • land

    • stocks

    • units of UK unit trust

    • funds in court

  • any interest under a trust

  • any interest held by a person as trustee AND judgment order made against person as trustee

  • any interest held by a person as trustee AND whole beneficial held by debtor

• procedure

1. application for interim order

   • reg'd land: register order under LRA 2002

   • serve order + app notice + evidence on debtor + creditors - can't deal with assets when served

2. anyone objecting to the final order - must file + serve written evidence not less than 7 days before the hearing

3. hearing for final order

   • court must consider:

     • personal circumstances of debtor

     • whether any other creditor would be unduly prejudiced by order (exceptional - other creditors getting no exceptional)

• sale proceedings for charged property

  • issue separate Part 8 claim + written evidence (r73.10)

  • usual to apply for order that debtor vacate premises too

  • court can refuse / postpone order to give debtor final chance to pay

Insolvency

• bankruptcy / winding up proceedings may be more appropriate if obvious debtor insolvent

Judgment summonses

• punish debtor who could pay but chooses not to by imprisonment

• only available for matrimonial maintenance orders + tax arrears

ENFORCEMENT OF JUDGMENTS FOR DELIVERY OF GOODS

• coco = warrant of delivery / HC = writ of delivery

• specific delivery - only seize goods specified in writ / warrant

• warrant / writ of delivery - seize goods specified OR goods up to value

• procedure

  • coco: file request + warrant + pay fee

  • HC: file praecipe + draft writ + judgment + pay fee

ENFORCEMENT OF JUDGMENTS FOR POSSESSION OF LAND

Common law

• after judgment, C may

  • enter land after judgment obtained and take it without force (self help); OR

  • enforcement effected under warrant / writ of possession - can use force (usual)

    • procedure

      • coco: file request + warrant + pay fee

      • HC: file praecipe + draft writ + judgment + pay fee

Warrants and writs of restitution

• = warrant in aid of primary warrant, used to remove persons ejected who regain entry

• must apply for permission without notice for warrant / writ + written evidence

• test: plain + sufficient nexus between first + second recovery of same land?

RECEIVERS BY WAY OF EQUITABLE EXECUTION

• if will be effective AND impossible to use other enforcement method, can appoint responsible person to receive money receivable from judgment debtor's interest in property (e.g. rent) and use it to pay a judgment debt

• receiver is paid for services from income of managed property

• procedure: issue without notice application + written evidence (r69.3)

CONTEMPT OF COURT

• = interfering with admin of law, such as:

  1. non-compliance with order requiring / prohibiting action (usually injunction) / assisting

  2. impeding / interfering with course of justice

  3. making false statement of truth

• must establish MR + proof BRD

• heard by judge

• purposes: punishment + enforcement

• punishments for contempt:

1. *** imprisonment (up to 2 years)

2. *** fines

3. *** sequestration

4. taking of security

5. award damages

6. strong reprimand

Committal for breach of an order

• formalities

  • order must contain penal notice, warning disobedience = contempt punishable by imprisonment, fine or sequestration (r81.9)

  • must serve personally on D (unless court dispenses with service) (r81.5, 81.6)

  • application to commit contemnor to prison made by

1. Part 8 claim form (if no existing proceedings); OR

2. application notice (if made in existing proceedings)

• procedure

1. application must include

1. penal notice (PD 81 paras 12(4), 13.2(4), annex 3)

2. statement of A's grounds

3. affidavit setting out facts + exhibiting documents

2. must serve claim form / application notice on R personally

3. R has 14 days to file AoS + serve evidence (r81.14(3))

4. R who intends to attend hearing must

1. give 7 days notice in writing to court + other parties

2. provide written summary of intended submission (r81.14(5))

5. the hearing

1. must be before a judge (PD 81 para 10.2)

2. R may give oral evidence and be XX'd

• purging contempt

  • contemnor can apply for discharge on ground: sufficiently punished, likely to obey order in future, suitable remorse

Sequestration

• application for permission to issue writ:

  • issue application notice + evidence

  • heard by judge (r81.18 - 81.27)...