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ENFORCING A COURT JUDGMENT
- AuthorGraeme Weir
Unfortunately, the fact that you have been able to secure a money judgment against a defendant does not mean that the judgment will be automatically discharged, without having to take further enforcement measures.
The onus will be on you and your solicitors to take the appropriate enforcement step to enhance your prospects off a successful recovery. There are a number of options open to you, which can be tailored to your specific circumstances and those of the defendant. Some of the more common options are as follows:-
County Court Bailiff – Warrants of Control
The County Court Bailiff can be instructed to enforce the judgment via the seizure of the defendant’s assets. The Bailiff will initially invite payment within a 7-day period, failing which an attendance at the defendant’s home or business will be made and goods seized and subsequently sold to repay the debt.
You can apply to enforce any County Court judgments up to £5,000.00 in value, in this fashion. The court issue fee and fixed costs of issuing the Warrant of Control are added to the judgment debt and as such, are recoverable from the judgment debtor.
High Court Enforcement Officer – Warrant of Control
If you have a High Court Judgment, (or County Court debt of at least £600.00) you can elect to instruct a High Court Enforcement Officer. In our experience this is preferable, as County Court bailiffs are often overloaded with work and are employed in the public sector – rather than paid on results. Conversely High Court Enforcement Officers operate in the in the private sector and compete with other “HCEO’s”. As they are largely ‘paid by performance’, the statistics would suggest than an HCEO is more likely to enforce a judgment on your behalf.
The added advantage is that if you transfer your County Court judgment to an HCEO for enforcement, the judgment is automatically treated as if it were a High Court judgment and thus continues to attract either on-going contractual interest, or interest at the ( current) statutory rate of 8% per annum for a 6 year period.
As before, the HCEO will make contact with the defendant to demand payment and in its absence will attend at the Judgment Debtor’s premises with a view to seizing assets or secure payment itself.
As before, the court issue fee and fixed costs of instructing the HCEO are added to the judgment and are as such recoverable from the Judgment Debtor on the successful enforcement of the judgment.
Third Party Debt Order
Upon application the court can freeze money in the debtor’s bank/building society or business account. This is a very handy tool if you are already aware of the Judgment Debtor’s bank account details. Helpfully the account will be frozen to the extent of the judgment and fixed costs and fees, before the Judgment debtor is aware of the application. Upon securing the interim order the bank or building society involved will be notified of the freezing order and is under an obligation to confirm whether or not the account was in credit, at the point of service to discharge the judgment in total or in part.
Having secured this interim order, the court will then make a “Final Order” releasing the frozen funds to the judgment creditor if appropriate, once the bank has confirmed the position.
Other opportunities to use this valuable tool also exist. If you are aware of another business or individual owing money to the judgment debtor, it is possible to secure a Third Party Debt Order against that entity. For example, if you are a sub-contractor in the building sector and are aware that the end client has yet to discharge monies owed to ‘your’ main contractor, it is possible to secure a Third Party Debt Order against the end client, at the top of the chain, to divert the funds owed to you as sub-contractor.
Once again, the court application fee and fixed costs of the exercise are added to the judgment debt and are recoverable from the Judgment Debtor upon the successful completion of the application.
Charging Orders over the Judgment Debtor’s Land or Property
Application can be made to the court to place a charge over the judgment debtor’s land or property. (Similar to a mortgage). This is an extremely useful tool, as if it does not coerce payment immediately in itself, the charge will afford you security over the Judgment Debtor’s asset. In the event the Judgment Debtor were to be then made bankrupt, you would rank as a secured creditor, standing a far greater prospect of receiving full payment under the terms of your charge, than if you were a run of the mill ‘unsecured creditor’.
Property prices in the South East have historically increased significantly over any measured time, meaning that ordinarily there is sufficient equity in most property to eventually discharge your charging order. As before, those judgments in excess of £5,000.00, or those obtained in the High Court, or transferred to an HCEO will attract interest for a 6-year period. You could therefore treat the charge as a medium term ‘investment’, in the absence of it being promptly discharged.
Any Charging Order can be enforced within a 12-year period via an ‘Order for Sale’ application, or it can be left indefinitely on the title until the premises are voluntarily sold. At that point the charge is discharged subject to their being sufficient equity.
Charging orders can also be used to be secured against other assets, including for example, stocks and shares in a company. In that scenario once a charging order has been secured over shares any dividends due to the Judgment Debtor can be diverted to you, or application made to sell the shares to offset the outstanding judgment debt. If the shares were owned in a private company it is likely that the Judgment Debtor/shareholder, would seek to avoid losing his interest in the company and discharge the claim instead!
Orders for Sale
Once a Final Charging Order has been secured over property a judgment creditor has a 12-year period in which to bring a separate application seeking an Order for Sale over the charged premises.
Under the terms of the application the court has a sole discretion as to whether or not an order will be granted. Currently, as rule of thumb if the sums charged to any judgment creditor exceed £10,000.00 and there is sufficient equity in the premises to justify the sale, it is highly likely that the order for sale will be granted. The court will take the view that it is not equitable for any Judgment Creditor to be kept from his money, if the premises could instead be sold.
The costs of the application and any subsequent conveyancing costs in arranging for the sale of the premises are ordinarily awarded to the Judgment Creditor and can be recouped from the eventual proceeds of sale. This is a very effective tool in any Judgment Creditor’s armoury, as quite often a judgment debtor would rather re-mortgage their premises, or arrange for its voluntary sale, than allow you to control the sale process. This application would only ever be made once it has been established that there is sufficient equity available. Appropriate enquiry will be made as to the premise’s value as against the sums outstanding under any prior charges secured against the title.
Orders for the Judgment Debtor to Attend Court
This is not so much a form of execution in its own right, but rather a process compelling the Judgment Debtor to provide detailed information as to their means, assets and outgoings. (This includes compelling them to provide supporting documentary evidence of the same).
If the Judgment Debtor is not an individual, but a business, you can compel a company director or business owner to attend the hearing to disclose information regarding the businesses financial position.
The court will ask the Judgment Debtor questions, (under oath) at a hearing inviting them to complete an extensive questionnaire to record the financial information.
The Judgment Creditor may also attend the hearing to ask further questions and use the information gained to decide what other forms of enforcement could be best utilised. For example, if a Judgment Debtor provides details of any bank accounts, that account information can be used for the purposes of a Third Party Debt Order. (The accounts can be frozen and the funds in them diverted to you, to satisfy the judgment debt).
When being served with notice to attend the court for this purpose, it is not unusual for a Judgment debtor to make settlement proposals to clear the debt, or make satisfactory repayment proposals. The added advantage is that as the evidence provided is under oath, should the defendant provide knowingly false information, a contempt of court has been committed. Potentially any Judgment Debtor has perjured themselves and can then be committed to prison. In the same way, should a Judgment Debtor fail to attend the hearing and subsequently fail to attend any fresh appointment listed, the Judgment Debtor can be held in contempt of court and made the subject of a suspended (or actual) prison sentence.
Should you wish to initiate any proceedings to recover monies owed to you, or already have a judgment which requires enforcing, please do not hesitate to contact Graeme Weir via firstname.lastname@example.org or directly on Tel: (01233) 648406. Graeme will be happy to discuss the options available to you, that best suits your individual circumstances, free of charge.