If you have obtained a Judgment Order and the debtor has not paid there are a number of methods of enforcement available as detailed below.
WARRANT OF EXECUTION
A Warrant of Execution is authority for a Court bailiff to take goods from a debtors home or business. If they can not collect money then the bailiff can take goods belonging to the debtor (but not household goods, tools or anything subject to a hire purchase or rental agreement) to sell at auction.
A Warrant of Execution can be obtained through the County Court for debts below
£5,000. However if a debt is above £600 execution can be transferred up to proceed through the High Court Enforcement Officer (see below).
If enforcement is successful the bailiff will recover the costs of execution from the debtor together with interest. If enforcement is not successful you do not pay any further charges.
HIGH COURT ENFORCEMENT
You can enforce a judgment of the High Court or ‘transfer up’ a county court Judgment.
If you proceed with enforcement through the High Court Enforcement team then you will need to apply for a Writ of Fi Fa.
The High Court Enforcement Officer has similar powers as the bailiff and can take goods from a debtors home or business. If they can not collect money then the High Court Enforcement Officer can take goods belonging to the debtor (but not household goods, tools or anything subject to a hire-purchase or rental agreement) to sell at auction.
If enforcement is successful the High Court Enforcement Officer will recover the costs of execution from the debtor together with interest. If enforcement is not successful then you only pay a small additional administration charge.
ATTACHMENT OF EARNINGS ORDER
An Attachment of Earnings Order requires an employer to deduct money from the debtor’s wages.
To make an Application for an Attachment of Earnings Order the debtor must be employed i.e. he/she can not be unemployed or self employed.
Once the Application has been made the Court will send the debtor a form to complete for details of their income and outgoings. The Court will decide how much can be deducted allowing for essential expenses such as mortgage/rent, food and household and other bills.
If you obtain an Attachment of Earnings Order then this will be sent to the debtor’s employer who will need to deduct the amount in the order directly from the debtor’s wages and send it to a collection office for onward transmission to you.
THIRD PARTY DEBT ORDER
A Third Party Debt Order can be served on any third party who owes money to the debtor. This application can be made against anyone or body that is holding or owes the debtor money such as for example a bank or a solicitor holding funds on the debtors behalf. The most common application is made against a bank or building society and the effect of the order is to effectively freeze or ‘ring fence’ the funds in debtor’s bank account up to the value of the order.
The application is made without notice to the debtor. The Court will consider the application and, if satisfied with the information provided, will make an Interim Third Party Debt Order. The interim order is then served on the bank, building society or other third party as well as the debtor and a hearing date is listed when the Court will decide whether the Interim Third Party Debt Order should be made final.
However on receipt of Interim Third Party Debt Order the bank or building society is required to provide the following information within 7 days of receipt of the order:-
(i) the number of the account;
(ii) whether the account is in credit;
(iii) if it is in credit then whether the balance is sufficient to cover the amount of the Order, the balance of the account at the date the bank or building society was served with the order and whether the bank or building society asserts any right over the funds.
If the debtor or the third party seeks to challenge the making of a final order they must do so by filing written evidence 3 days before the hearing date.
If the debtor (who is an individual) is placed in a position hardship as a result of an Interim Third Party Debt Orders/he can make an application (supported by evidence) for a Hardship Payment Order.
If the Court makes a Final Third Party Debt Order then the third party must release the funds held to you. The Court will not make a Final Third Party Debt Order if the account is not in credit or there are no funds to satisfy the debt on the date the Interim Order was served.
This can be a very effective method of enforcement if you are aware of the debtor’s bank or building society and/or account details. An Application for a Third Party Debt Order can be made against an individual or company debtor.
A Charging Order can be obtained against the debtor’s property or piece of land. The same application can also be made against stocks and shares, funds and money held by the Court. The property against which a charge is sought must be registered in the debtor’s name.
To make an application for a Charging Order you will need to have the following information:-
(i) Details of the Judgment (including the amount, Court and claim number), costs and interest due;
(ii) Name and address of the debtor;
(iii) Address of the property or land including evidence that the debtor owes the property solely or jointly. We would usually obtain Office Copies from the Land Registry, if the land is registered land, as evidence;
(iv) Details of other creditors (including their names and address) or any body else who has an interest in the property (such as a spouse);
The application is made without notice to the debtor. The Court will consider the application and will make an Interim Charging Order. The interim order is then registered with the Land Registry and served on other creditors and those with an interest in the property such as a mortgagee and a hearing date is listed when the Court will decide whether the Interim Charging Order should be made final.
If the debtor or anyone else served with a Charging Order seeks to challenge the making of a final order they must do so by filing written evidence 7 days before the hearing date.
If the Court makes a Final Charging Order then this will be registered at the Land Registry .
This is a suitable method of enforcement in the event you are aware of property owned by the debtor. However it is important to note that a Final Charging Order is not an order for sale and therefore, whilst the debt is secured (to the extent that there may be available equity in the property), the funds will not be paid until sale of the property and always rank after those with a legal charge (such as a mortgagee).
If you obtain a Final Charging Order you can make an Application for the sale of the property. We can advise you on the process and costs for doing so.
If a debtor (an individual) owes you more than £750 you can present a Bankruptcy Petition in Court to make the debtor bankrupt.
You must be able to ‘prove’ the debt by first serving a Statutory Demand which did not result in payment or an agreement to pay the amount due (and an application to set aside the Statutory Demand has not been made) or a Judgment where execution has not been successful i.e. the bailiff or High Court Enforcement Officer has been unable to recover the debt in full. This is known as the execution being Nu/a Bona.
The Court will list a hearing date at the time the Bankruptcy Petition is issued. Tthe documents must then be personally served on the debtor.
At the hearing the Court will consider the Application and either:-
(i) Make a Bankruptcy Order;
(ii) Stay the proceedings if more information is required;
(iii) Dismiss the Application;
(iv) Adjourn the hearing
The decisions taken by the Court on hearing a Bankruptcy Petition are dependent on the specific circumstances of the case.
The difficulty with making an application for a Bankruptcy Order as a means of execution is that if a bankruptcy order is made by the Court you are most unlikely to recover any money. However sometimes the threat of a bankruptcy order can have the desired affect. The debtor may pay just to avoid bankruptcy.
There are strict processes and fees which must be paid to make somebody bankrupt which we are happy to discuss in more detail.
WINDING UP ORDER
A Winding Up Order is similar to a Bankruptcy Order for an individual but can only be obtained against a company that can not (or will not) pay a Judgment debt.
You can only issue a Winding Up Petition if,·-
(i) The company owes you £750 or more and does not pay the debt within 21 days of service of a Statutory Demand;
(ii) You have an unsatisfied Judgment;
(iii) The company is not able to meet/pay its debts as they fall due;
(iv) The company’s debts exceed its assets.
When a Winding Up Petition is issued a hearing date is listed by the Court. Tthe documents must then be personally served on the company at its registered office. An advertisement is then placed in the London Gazette of the Winding Up Petition.
The hearing allows the Court to determine whether to accept the creditor’s Winding Up Petition. If the Court finds that a company is unable to pay its debts and makes a Winding Up Order then the Court will appoint an Official Receive who may then appoint a liquidator. Whether or not you recover all or part of the debt due to you will depend on whether the company’s assets exceed its liabilities so that a dividend can be distributed to the creditors.
The difficulty with issuing a Winding Up Petition as a means of execution is that if a Winding Up Order is made by the Court and the company is wound up you are most unlikely to recover any money. However sometimes the threat alone can have the desired affect. The debtor may pay just to avoid liquidation.
There are strict processes and fees which must be paid to wind up a company which we are happy to discuss in more detail.
ENFORCEMENT OF JUDGMENT OF ENGLAND & WALES ABROAD AND A FOREIGN JUDGMENT IN THE UK
It is also possible to enforce a Judgment obtained in England and Wales abroad or a Judgment obtained abroad in England and Wales. There are specific procedures to be followed depending on the nature of the Judgment and the country in which the Order is made or to be enforced. We are happy to discuss the options in more detail on a case specific basis.
Harris da Silva offers fixed fees in relation to the following Applications :-
(i) Third Party Debt Order;
(ii) Charging Order;
(iii) Bankruptcy Petition;
(iv) Winding Up Order.
Please request a copy of fixed fees Information Sheets for further details or do not hesitate to contact us on 0207 713 0700 to discuss fees in relation to all types of enforcement further.
Please not that this information sheet is only intended to be an overview of the various methods of enforcement available. For case specific and detailed advice on the procedure and rules which apply to the above methods of enforcement (and other options which may be available) please contact us on 0207 713 0700.