Enforcement – overviewIntroduction to enforcement

There are many methods of enforcement available under the CPR. The key to successful enforcement of a judgment is choosing the most appropriate form method of enforcement. This will depend on the identity of the judgment debtor and the nature, extent and location of his assets.

Tribunal, Courts and Enforcement Act 2007

The Tribunal, Courts and Enforcement Act 2007 is still being implemented in tranches. The provisions of interest to Dispute Resolution practitioners relate to enforcement by taking control of goods, see Seizing a debtor’s possessions and individual debt management and relief, see Debt management and relief. The TCEA 2007 also contains a new power for the court to substitute its own decision for that of a court, tribunal or authority whose decision it has judicially reviewed.

Information hearing - introduction and the hearing

Enforcing a judgment or order can be a timely, expensive and sometimes uncertain process. The more the creditor knows about the debtor and his assets, the more effectively he can target enforcement. This can be achieved through an information hearing. If a judgment debtor fails to attend the hearing they may be subject to a committal order.

Information hearing - procedure and orders

A judgment creditor can apply to the court for an information hearing. If granted the court will order that the judgment debtor attends court to provide information which is relevant to the location and value of their assets. The CPR sets out the procedure to be followed by both the judgment creditor and debtor in relation to an information hearing. Generally orders to attend an information hearing cannot be served out of the jurisdiction.

Seizing the debtor's possessions — writs of fi fa and warrants of execution

A judgment creditor can enforce the debt against the debtors' possessions in either the High Court or the county court. Under the procedure, the High Court Enforcement Officer (HCEO) or bailiff has the power to take and auction goods from the debtor's home or business. The process is governed by the High Court and County Courts Jurisdiction Order SI 1991/724, the County Court Act 1974, the Rules of the Supreme Court Order 46 and the County Court Rules Order 26.

Seizing the debtor's possessions — executing writs and warrants

There are rules governing what goods may or may not be seized by an HCEO or bailiff, as well as case law indicating the parameters of acceptable conduct by an HCEO or bailiff executing a writ of fi fa or warrant of execution.

Money owed to the debtor — third party debt orders - General

A creditor may enforce the debt against money due and owing to the debtor by a third party. However, this method of enforcement is subject to the court's discretion and the circumstances at the time of enforcement. The orders are not effective against insolvent third party debtors. This is governed by CPR 72.

Money owed to the debtor - third party debt orders - the process

The first step in the process is to obtain and serve an interim third party debt order, following this a hearing will be arranged to determine whether or not to make the third party debt order final. The third party has an opportunity to intervene to object to the making of the order.

Money owed to the debtor — banks and building societies

There are additional requirements where the third party served with a third party debt order is a bank or building society.

Attachment of earnings

The creditor can apply for an order to enforce against the debtor's wages or salary. However, there are certain situations where this method is not available for example where the debtor is unemployed or is in the armed forces. The High Court has no jurisdiction and therefore an attachment of earnings must be obtained in the county court. There are set procedures for the judgment creditor and the debtor to follow.

Charging orders

A judgment creditor can apply for a charging order over:

• land

• securities

• funds in court

There are two different types of charging orders, interim and final orders. The process applicable to each is set out in CPR 73.

Charging orders — orders for sale

A charging order only secures the value of a judgment debt, it does not satisfy it. The next step after obtaining a final order is to seek satisfaction of the judgment debt by obtaining an order for the sale of the debtor’s property subject to the charging order.

Charging orders — partners and partnership property

Charging orders can be made over partnership property. Special rules governing the service of interim charging orders apply in such instance. CPR 73 also provides for applications to charge partnership property to be made under section 23 of the Partnership Act 1890.

Charging orders — charging orders, stop orders and stop notices

Charging orders can also be made over securities, including shares. Additionally a judgment creditor may wish to prevent any dealing in such securities (including the payment of dividends) either with (stop notices) or without (stop orders) notice.

Equitable execution

This is a discretionary relief which is only available where there are no other enforcement methods. The execution has to be administered by a receiver which makes it a more complicated and costly process than other methods of enforcement. Equitable execution prevents a debtor from receiving the income affected by the order and authorises the receiver to collect that income and pay essential expenses connected to the relevant property or asset.

Debt management and relief

Part 5 of the Tribunal, Courts and Enforcement Act 2007 contains provisions enabling an individual to enter into a number of debt management schemes. Not all of the provisions have yet been implemented, however, those enabling a debtor to obtain a debt relief order (DRO) preventing enforcement proceedings against him without the court’s permission are now in force and of relevance to prospective judgment creditors.