Enforcement of Court Judgments in England
A judgment from a court in England (and Wales) may be just a piece of paper, but it gives you considerable power.
A judgment allows you to do some remarkable things to make sure you are paid the money awarded to you. You can charge and force the sale of your debtors’ real estate or company shares, freeze their bank accounts, take a percentage of their earnings, seize and sell their possessions, make them come to court, under threat of imprisonment, to disclose their finances to you and make them insolvent or bankrupt.
Interested? Read on.
How do you enforce a money judgment?
There are six main ways in which to enforce a money judgment. These are:
- Charging Order – Order for Sale
- Third Party Debt Order
- Attachment of Earnings
- Taking Control of Goods
- Oral examination/Order of Committal
1. Charging Orders
A Charging Order enables you to secure a charge over a judgment debtor’s house, land or securities.
Once obtained, it effectively prevents the debtor from selling the charged property unless they pay off your debt first.
A charge also allows you to apply to the court for an order for sale. Useful if there is equity in the debtor’s property. Alternatively, if you have security over shares in a company, you could buy the shares and potentially control the company.
Advantages of Charging Orders
- A charge over valuable assets secures your debt.
- Allows you to apply for an order for sale.
- The costs incurred and interest will be added to the debt if your application is successful.
Disadvantages of Charging Orders
- Realising the debt owed to you by obtaining a charge and an order for sale can be a prolonged process. Think months and years.
- There are uncertainties. The Court may consider granting a charge over an individual’s asset(s) to be inappropriate if the debt due is small. An order for sale of a residential property may not be granted if it is the only home of the debtor’s family.
2. Third Party Debt Orders
If you know the bank account details, or even just the name of the bank where the debtor has funds, you can effectively freeze that account until the money owed to you is paid to you from it.
If you make an application the court will grant you an interim third party debt order, which you then serve on the debtors bank. The bank is obliged to freeze any funds held by them to you on your behalf until a court hearing to determine if the monies should be paid to you.
- Potentially very effective if the debtor has funds.
- Debtors often do not have significant funds in bank accounts.
- Bank details are often unknown though see the section below on Oral Examination.
3. Attachment of Earnings
An Attachment of Earnings order entitles you to receive a proportion of the debtor’s salary direct from their employer, until the amount owed to you is repaid.
After an application, the Court will look at the debtor’s expenses / outgoings and decide how much (if any) can be taken from the debtor’s wages to be paid to you. If the Court is satisfied it will proceed by making an Attachment of Earnings Order.
- A simple and easy process to understand and use.
- A relatively inexpensive way to enforce a judgment.
- Your money is deducted from the debtor’s salary and paid to you directly.
- It will take a long time to pay off a significant debt using this method.
It is necessary to distinguish between companies and individuals:
- If it is a company which owes you money and the amount owed is more than £750, then you can apply to have the company wound up.
- If an individual owes you money and they owe you more than £5,000 then you can apply to make them bankrupt!
What is the process?
- Serve a statutory demand to try to settle the amount due.
- If the debtor fails to settle the sum set out in the statutory demand then you can make an application to the Court for a bankruptcy petition.
- Once submitted, the Court will apply a seal to the petition when issuing the same and will fix a hearing date for the petition prior to sending you copies of the petition.
- Once you receive the sealed copies from the Court you then need to serve the bankruptcy petition on the debtor.
- You need to prepare for the hearing of the bankruptcy petition.
- If the hearing goes well and the Court finds that the statements in your bankruptcy petition are true and your debt still remains outstanding, then the Court will make a bankruptcy order.
- Bankruptcy will reveal all of the debtors assets.
- After bankruptcy is granted the debtor’s assets are controlled by a trustee who must distribute them amongst the creditors.
- Under bankruptcy, earlier attempts to hide assets can be unwound.
- The process can be expensive and time consuming
- A bankruptcy order will only be granted if the debtor’s debts exceed his assets. The chances of receiving only a small proportion of your debt or nothing can be high.
- Once bankruptcy is completed, any chance of recovering the debt by another method is lost.
Winding up a Company
What is the process?
- Serve a statutory demand on the company (optional).
- If the debtor fails to settle the statutory demand, make an application to the Court for a winding up petition.
- The Court will schedule a date for the winding up petition hearing.
- If your application is successful, the court will issue a winding-up order.
- The Court then puts an official receiver in charge in order to commence the process of turning the company’s assets into money, to settle your debt.
- The threat of a winding-up proceedings can make a company settle your debt.
- A liquidator takes control of the company if your application is successful.
- Under insolvency earlier attempts to hide assets can be unwound.
- This process can be expensive and time consuming.
- As with bankruptcy, if a company is wound up it is because its assets do not cover its debts. The chances of recovery of your full debt can be low.
5. Taking Control of Goods
Under this method, Enforcement Agents/High Court Enforcement Officers (often (incorrectly) called bailiffs) take control of the debtor’s goods and sell them to raise funds to settle the amount outstanding to you.
- Make an application to the Court for a writ or warrant of control (depending on the court used) and pay the required fee.
- An enforcement agent gives the debtor notice of his intention to take control of goods possessed by the debtor.
- The enforcement agent attends the property and seizes the goods, making an inventory of the goods.
- The goods can be sold at auction to pay back your money debt.
- A relatively simple and straightforward method.
- Has a strong effect on the debtor.
- If the debtor doesn’t have many goods which can be sold at auction then this method will be of limited use.
6. Orders To Obtain Information
Upon application, you can compel the debtor, or if the debtor is a company, an officer of that company, to attend court and answer questions as to their means or any other information necessary to enforce the judgment.
If the debtor fails to attend the court, or to co-operate, upon a further application a committal order can be made. This will result in the debtor being imprisoned if he continues to fail to co-operate.
- A useful way to obtain information.
- This method is more of a sanction than a way of enforcing your judgment.
- Committal orders are very draconian and are only made after persistent and long term obstruction by the debtor.
As you can see there are various methods from which to choose to enforce your money judgment and / or get your money back from a debtor. If you need help to decide which method is best in your case and carry out the process then make sure to give us a call, as we will be happy to help.
Remember, you must act within six years of the date of the judgment.