#16066 - Enforcement Of Money Judgments - BPC Civil Litigation

Enforcement of money judgments

SUMMARY, ENFORCEMENT

• A judgment creditor can ask for the court’s assistance in discovering the assets available for enforcement by applying to obtain information from the judgment debtor.

• A money judgment can be enforced by:

  1. writ/warrant of control against the judgment debtor’s goods;

  2. by third party debt order against eg a bank account;

  3. by attachment of earnings against the judgment debtor’s salary;

  4. secured by obtaining a charging order (normally on land)

• Each type has its own enforcement procedure (land, goods, injunctions etc)

• Most enforcement procedures are dealt with administratively by the court, EXCEPT, (court orders required for):

  • Third party debt orders;

  • Charging orders;

  • Committal

    • (NB: re writ/warrant of control normally no permission required, except in the situations listed in r83.2, eg 6+ years since judgment; one party died since judgment etc)

• (a) Third Party Debt Orders and (b) Charging Orders have a 2-stage process:

  • Interim orders are sought without notice;

  • Final orders are sought at a final hearing.

• [[so all the 4 types of enforcement mechanism are initially applied for without notice (but then for 3^rd party debt orders and charging orders need orders for second stage of final orders)]

PD40B (Judgments & Orders), para 4, Correction of errors in judgments & Orders

• Where a judgment/order contains an accidental slip or omission a party may apply for it to be corrected.

• The application notice (which may be an informal doc such as a letter) should describe the error, and set out the correction required.

• An application may be dealt with without a hearing if:

  • (1) where the applicant so requests;

  • (2) with the consent of the parties; or

  • (3) where the court does not consider that a hearing would be appropriate.

• The judge may deal with the application without notice IF: the slip/omission is obvious; or may direct notice of the application to be given to the party/parties.

• If the application is opposed it should, if practicable, be listed for hearing before the judge who gave the judgment/made the order.

• The court has an inherent power to vary its own orders, to make the meaning & intention clear.

PD40B, para 8, Orders requiring an act to be done

• (1) An order which requires an act to be done (other than a judgment/order for the payment of an amount of money) MUST specify the time within which the act should be done.

• (2) the consequences of failure to do an act within the specified time may be set out in the order. The wording of the following examples suitably adapted must be used:

  • (1) Unless the [claimant][defendant] serves his list of documents by 4.00pm on Friday, January 22, 1999, his [claim][defence] will be struck out and judgment entered for the [defendant][claimant]; OR

  • (2) Unless the [claimant][defendant] serves his list of docs within 14 days of service of this order his [claimant][defence] will be struck out and judgment entered for the [defendant][claimant].

  • The first example should be used wherever possible (i.e. specifies the date and time more precisely)

CPR PART 70: general rules about enforcement of judgments & orders

CPR 70.1, Scope of this part & interpretation

• (1) This Part contains general rules about enforcement of judgments and orders

  • (Rules about specific methods of enforcement are contained in Parts 71-73, 81, 83, 84, 89)

• (2) In this part and in parts 71-73:

  • “judgment creditor” = a person who has obtained or is entitled to enforce a judgment or order;

  • “judgment debtor” = a person against whom a judgment/order was given or made;

  • “judgment or order” includes an award which the court has:

    • (i) registered for enforcement;

    • (ii) ordered to be enforced; or

    • (iii) given permission to enforce

    • As if it were a judgement or order of the court; and in relation to such an award, “the court which made the judgment or order” means the court which registered the award or made such an order;

  • “Judgment or order for the payment of money”:

    • includes a judgment/order for the payment of costs;

    • but does NOT include a judgment/order for the payment of money into court.

CPR 70.2, Methods of enforcing judgments/orders

• (1) PD70 sets out methods of enforcing judgments/orders for the payment of money.

• (2) a judgment creditor MAY, except where an enactment/rule/PD provides otherwise:

  • (a) use any method of enforcement which is available; and

  • (b) use more than one method of enforcement, either at the same time or one after another (sequentially or sequentially).

PD70, para 1.1, Methods of Enforcing MONEY judgments, r70.2

• 1.1, a judgment creditor may enforce a judgment/order for the payment of money, by any of the following methods:

• 1.1, a judgment creditor may enforce a judgment/order for the payment of money, by any of the following methods:

  1. a writ of control (High Court); or warrant of control (County Court) (see Parts 83-84)

     • [for seizure and sale of the debtor’s goods and chattels to satisfy the judgment debt see Pt 83 re writs & warrants; Pt 84 re taking control of goods];

     • Advantages: quick; cheap; easy

     • Disadvantages: only likely to satisfy a small debt; might not be able to sell the goods; goods are sold at auction (often get less than an open market)

  2. a third party debt order (see Part 72), eg against a bank account;

     • Where a 3^rd party owes money to the judgment debtor

     • Direct payment from 3^rd party to the judgment creditor

     • Advantage: reputable 3^rd party (bank/building society), likely to pay money direct to judgment creditor

     • Disadvantage: cannot get 3^rd party debt orders over joint accounts

  3. a charging order, stop order or stop notice (see Part 73)

     • [a charging order: imposes on property of the debtor a charge for securing the payment of money due];

     • Disadvantages: can be hard to get the money; have to order a sale; could be hard if the property is jointly owned;

     • Any prior charges on the land (eg mortgages) will take priority, the equity on the land might be small

  4. (in the County Court) an attachment of earnings order (ese Part 89);

     • (creditor gets order allowing them to take funds directing from the wages of the debtor)

     • Advantage: good for small debts; cut out the debtor

     • Disadvantage: slow; maybe only small amounts

  5. The appointment of a receiver (see Part 69).

• 1.2, in addition, the court may make the following orders against a judgment debtor:

  1. An order of committal, but only if permitted by:

     • (a) A rule; and

     • (b) the Debtors Act 1869 and 1878

     • (see Pt 81 re proceedings/applications re contempt of court).

  2. In the High Court, a writ of sequestration, only if permitted by 81.20

• 1.3, the enforcement of a judgment/order may be affected by:

  1. The enactments relating to insolvency; and

  2. County Court administration orders.

para 1A.1, definitions:

• In this PD:

• (1) “writ of control” is to be construed in accordance with s62(4) Tribunals Courts & Enforcement Act 2007;

• (2) “writ of execution” includes:

  • (a) a writ of possession;

  • (b) a writ of delivery;

  • (c) a write of sequestration;

  • (d) a writ of fieri facias de bonis ecclesiasticis;

  • And any further writ in aid of any such writs

  • But does not include a write of control

CPR 70.2A, Court may order act to be done, by another person, at expense of disobedient party

• (1) In this rule, “Disobedient party” means = a party who has not complied with a mandatory order, an injunction, or a judgment/order for specific performance of a contract.

• (2) Subject to para (4), if a mandatory order/injunction/judgement or order for SP is not complied with the court may direct that the act required to be done may, so far as practicable, be done by another person, being:

  • (a) the party by whom the order/judgment was obtained; or

  • (b) some other person appointed by the court.

• (3) where Para (2) applies:

  • (a) the costs to another person of doing the act will be borne by the disobedient party;

  • (b) upon the act being done the expenses incurred may be ascertained in such manner as the court directs; and

  • (c) execution may issue against the disobedient party for the amount so ascertained and for costs.

• (4) Para (2) is without prejudice to:

  • (a) the court’s powers under s39 SCA 1981 [execution of instrument by person nominated by High Court]; and

  • (b) the court’s powers to punish the disobedient party for contempt.

CPR 70.3 Transfer of proceedings for enforcement

• (1) subject to r83.17, a judgment creditor wishing to enforce a High Court judgment/order in the County Court; must apply to the High Court for an order transferring the proceedings.

• (2) a PD may make provisions about the transfer of proceedings for enforcement.

• (r83.19 contains provisions re transfer of County Court proceedings to the High Court).

Need to transfer from High Court to County Court if:

• seeking an attachment of earnings order, as County Court has exclusive jurisdiction to make one (see below); so, if in High Court, will need to transfer to County Court to get such an order;

• Judgment must be enforced in the County Court if:

  • The sum which it is sought to enforce is less than 600; or

  • the judgment arises out of an agreement regulated by Consumer Credit Act 1974.

• Sum less than 600

• [[IGNORE THIS: though Sime pg 531-2 says: this 600 limit only applies if enforcement is by taking control of goods; and says that if a charging order is sought, if debt is less than 5,000 it MUST be in County Court???)

Commentary, 70.3.2, Need to transfer to High Court for enforcement if:

• The most common reason for transferring from County Court to the High Court for enforcement is to use a High Court...