20: Enforcement Flashcards
(90 cards)
1
Q
When does a judgment take effect?
A
A judgment takes effect from the day it is given or from a later date specified by the court.
2
Q
What can a judgment debtor apply for if they want to stop the enforcement of a judgment?
A
A judgment debtor can apply for a stay of execution.
3
Q
What must the judgment debtor provide to apply for a stay of execution?
A
The judgment debtor must provide evidence of means (financial circumstances) and show they are unable to pay or it is not expedient to enforce the order.
4
Q
What happens if a stay of execution is granted?
A
The judgment debtor will need to still to pay the debt in instalments.
5
Q
Under which acts can claimants claim interest up to the date of judgment?
A
Interest can be claimed under s69 County Courts Act 1984 (County Court) or s35A Senior Courts Act 1981 (High Court).
6
Q
Under which act does it state that there is no interest due on County Court judgments for less than £5,000? (Apart from 2 exception)
A
County Courts (Interest on Judgment Debts) Order 1991.
7
Q
What are the exceptions for interest on County Court judgments less than £5,000?
A
- Debt arising under a contract with provided interest terms.
- Debt with statutory interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8
Q
What is the interest rate for County Court judgments of £5,000 or more?
A
Same rate as a High Court judgment (8%) if payment has not been postponed.
9
Q
What happens to interest if a judgment creditor recovers any payment during enforcement?
A
No interest runs during that period of partial enforcement.
10
Q
All method enforcements, even if partially effective, postpone interest on the judgment debt from running except one. Which is it?
A
A charging order.
11
Q
At what rate do High Court judgments carry interest from the date of the judgment?
A
8% per annum
12
Q
Can a County Court judgment be transferred to the High Court for interest purposes?
A
Yes, if it is for £600 or more, it can be transferred and will carry High Court interest rates (8%).
13
Q
What is the interest for County Court judgments for less than £5,000?
A
None, unless provided for in a contract or from Late Payment of Commercial Debts (Interest) Act 1998.
14
Q
What is the interest for County Court judgments for £5,000 or more?
A
At the same rate as a High Court (8%), unless postponed by a method of enforcement.
15
Q
What sources of information might be used to investigate a judgment debtor’s circumstances?
A
Public registers, social media, local news media, and public records at Companies House.
16
Q
What can an enquiry agent be used for?
A
To ascertain what assets the judgment debtor has.
17
Q
What might a judgment creditor use in appropriate cases to find out the debtor’s assets?
A
A freezing injunction and/or a search order.
18
Q
What is the purpose of applying for an order to obtain information?
A
To determine the best method of enforcement by discovering the judgment debtor’s assets.
19
Q
What form is used for an application notice to obtain information from a judgment debtor?
A
Form N316 Application for order that debtor attend court for questioning.
20
Q
What is the process of applying for an order to obtain information?
A
- Judgment creditor files Form N316
- Court issues order requiring judgment debtor to attend court and produce documents
- Order is served personally on debtor no less than 14 days before hearing
- Debtor may, within 7 days of service, ask the credior to pay their travel expenses to court
- Creditor files an affidavit no less than 2 days before hearing, or produce it at hearing
- Hearing (before judge or court officer)
21
Q
What must the application to obtain information contain according to PD 71?
A
- Judgment debtor’s name and address
- identifying the judgment debt
- request questioning before a judge (if needed)
- documents the debtor should bring to court.
22
Q
Who will take the hearing after an order to obtain information is issued?
A
Either a court officer or a judge.
23
Q
If the hearing to obtain information is attended by a court officer, what are the creditor’s responsibilities?
A
The creditor MAY attend and ask questions. The court officer will ask a standard set of questions set out in PD 71.
24
Q
If the hearing to obtain information is attended by a judge, what are the creditor’s responsibilities?
A
The creditor MUST attend and conduct questioning. The standard set of questions are not used.
25
What if the judgment debtor doesn't turn up to the hearing?
They may be issued with a committal order (send someone to prison for contempt of court).
26
What parts of the rules govern enforcement of judgments?
Part 71: Order to obtain information
Part 72: Third party debt order
Part 73: Charging order (using a Part 8 claim form)
Parts 83-85 : Taking control of goods
Part 89: Attachment of earnings order (AEA 1971)
27
What does taking control of goods involve?
Recovering the judgment debt by seizing personal possessions of the debtor of equivalent value.
28
Can taking control of goods be combined with other enforcement methods?
Yes, it can be combined with other methods.
29
When is the court's permission required for taking control of goods?
The court's permission is required if the judgment is more than six years old.
30
How is taking control of goods done in the County Court and High Court?
In the County Court, it is done by a warrant of control;
in the High Court, it is done by a writ of control.
31
Who carries out the enforcement in the County Court and High Court?
County Court certificated enforcement agent (bailiff/CCCEA) in the County Court;
High Court enforcement officer (HCEO) in the High Court.
32
What are the monetary thresholds for taking control of goods in the County Court and High Court?
Less than £600 must be enforced in a County Court;
£600 to £5,000 can be enforced in either court;
£5,000 or more must be enforced in the High Court.
33
What are the key steps in taking control of goods?
1. Judgment creditor files a request for a warrant (or writ) of control and pays the fee.
2. Court prepares the warrant (or writ) of control.
3. Court passes the warrant (or writ) to the enforcement agent/officer.
4. Enforcement agent/officer visits the judgment debtor's premises.
5. Enforcement agent/officer takes control of goods.
6. If unpaid, goods sold at public auction.
7. Enforcement costs deducted from sale proceeds.
8. Balance paid to judgment debtor.
34
Where must the judgment creditor file documents for taking control of goods? Give answers for both High Court and County Court.
High Court: Relevant District Registry or Central Office of the Senior Courts.
County Court: County Court hearing centre or Money Claims Centre.
35
What form is used for a writ of control in the High Court?
Form No. 53: Writ of Control.
36
What form is used for a warrant of control in the County Court?
Form N323: Request for Warrant of Control.
37
What are the fees for filing for a warrant/writ of control?
High Court: £66.
County Court:
£77 (Money Claim Online or County Court Business Centre);
£110 otherwise.
38
What are the functions of CCCEAs and HCEOs?
They carry out functions like serving documents and seizing goods to satisfy judgments.
39
What must an enforcement agent do to take control of goods?
1. Give the debtor at least 7 clear days' written notice of their intention.
2. Take control of goods within 12 months of giving notice.
3. Attend premises where they have the right to enter or where the debtor has goods.
4. Provide the debtor with an inventory of goods taken as soon as practicable.
40
What time can the enforcement agents enter the premises?
Not before 6am or after 9pm.
41
How long after seizing goods must an enforcement agent provide the judgment debtor with an inventory of goods they have taken?
As soon as reasonably practicable.
42
When the enforcement agent takes control of goods, what four things must they do (one out of the four)?
1. Secure goods on premises
2. Secure them on a highway, or within a reasonable distance away.
3. Remove them and secure them elswhere
4. Enter into a controlled goods agreement with the judgment debtor.
43
What are controlled goods agreements?
Agreements where the debtor acknowledges the agent's control of goods and agrees not to remove or dispose of them until the debt is paid. Once agreed, the agent can re-enter the premises to inspect the goods or remove them at any time.
44
What must a controlled goods agreement contain?
It must be:
- in writing
- list the goods taken control of
- and contain repayment terms.
45
What types of goods cannot be seized?
1. Tools, books, and vehicles necessary for employment or education up to £1,350.
2. Basic household items.
3. Assistance dogs.
4. Vehicles for disabled persons.
5. Emergency vehicles (e.g., police, fire, ambulance).
46
What must the enforcement agent do if goods are seized?
Provide the debtor with at least 7 clear days' notice before sale and sell at the best price reasonably obtainable at public auction.
47
What happens if a third party claims the goods seized are theirs? (3/7 days process)
The third party must notify the agent within 7 days of goods being removed, and the agent must notify the judgment creditor 3 days after notice is received. The judgment creditor must admit the claim within 7 days of notice and the agent will inform the third party within 3 days of admission.
48
What will a third party do if their claim to the judgment debtor's property is not admitted?
They can issue an application notice supported by a witness statement. They then have to pay an payment equal to the value of goods and the enforcement agent's costs of retaining the goods.
49
What is an attachment of earnings order (AEO)?
An AEO compels a judgment debtor's employer to make regular deductions from the debtor's earnings and pay them into court (Part 89).
50
What form is used to request an AEO?
Form N337 Request for Attachment of Earnings Order.
51
What form does the judgment debtor use to reply to an AEO application?
Form N56 Form for replying to an attachment of earnings application.
52
What steps are involved in the process of obtaining an AEO?
1. Judgment creditor files request for an Form N337 AEO at the CCMCC.
2. Court issues application.
3. Court serves application and N56 Response form on judgment debtor.
4. Judgment debtor completes and returns N56.
5. Judge/officer decides to make AEO.
6. Protected earnings rate and deduction rate identified.
7. Creditor or debtor may apply to vary within 14 days; transferred to local County Court if so.
8. Employer pays instalments to County Court out of debtor's earnings.
53
Who can an AEO be made against?
Only against individuals, not companies.
54
Where must an AEO be applied for?
AEOs are only available from the County Court. If the judgment is from the High Court, it must be transferred to the County Court.
55
Can an AEO be combined with other enforcement methods?
No, once an AEO is made, no other enforcement steps can be taken without court permission.
56
Who deals with making an AEO and when will it be out of their hands?
The court officer will make the order, but they will refer the matter to a judge if there is insufficient information to do so.
57
What are the two assessments made when determining how much the debtor should pay under an AEO?
1. Normal deduction rate - reasonable instalment towards judgment.
2. Protected earnings rate - minimum amount for debtor to live on.
58
Where an AEO is made as an administrative decision, how long does either the creditor and debtor have to apply to have the matter considered as a hearing?
14 days.
59
What can either party do once an AEO is granted?
Either party can apply on notice for the terms of the order to be reconsidered.
60
What is a charging order?
A charging order secures a judgment debt against the judgment debtor's interest in land, making the creditor a secured creditor like a mortgagee.
61
What will the charging order rank as on the property register?
As an equitable mortgage.
62
What governs charging orders?
Part 73.
63
Can charging orders be made in the High Court or County Court?
They can be made in both courts.
64
What is the minimum value of judgment that is required to make a charging order?
£5,000 in either court.
65
What form is used to apply for a charging order?
Form N379 Application for a Charging Order.
66
What are the steps for applying for a charging order?
1. Judgment creditor applies with written evidence.
2. Court officer makes an Interim Charging Order (ICO).
3. ICO served on judgment debtor within 21 days.
4. Judgment debtor can apply within 14 days for review by a judge.
5. Within 28 days, parties can object to a Final Charging Order (FCO).
6. If no objections, FCO can be made.
7. Separate proceedings to apply for an order for sale.
67
Who deals with charging orders?
A court officer may make an interim charger order (ICO) if they are satisfied the judgment debtor has an interest in the land. This is done administratively.
68
What must the judgment creditor identify before applying for a charging order?
Ownership of any property the judgment debtor owns, which can be done through an official search of the Index Map (Form SIM) and obtaining copies from the Land Registry for a fee.
69
How is a charging order enforced by an order for sale?
A charging order can be enforced through an order for sale by commencing separate proceedings using a Part 8 claim form either in the Chancery Division of the High Court or in the County Court.
70
What is the jurisdiction limit for the County Court regarding unpaid judgment debt?
The County Court has jurisdiction where the judgment debt does not exceed £30,000.
71
Is it possible to obtain an order for sale to enforce a charging order where the debtor was ordered to pay in instalments?
No, unless there has been a default in making the payments.
72
In order to obtain an order for sale to enforce a charging order, what must the Part 8 form be supported by?
Evidence in the form of a witness statement (verified by a statement of truth) or an affidavit, with a copy of the charging order.
73
What must the evidence that is attached to Part 8 claim form include when applying for an order for sale?
1. Identify the charging order and the land.
2. Specify the amount and balance outstanding.
3. Verify the debtor's title to the property.
4. State names and addresses of other creditors with prior charges.
5. Estimate the price of the property sale.
74
What are the 3 sections of Part 73?
Section I: Charging orders
Section II: Stop orders
Section III: Stop notices
75
What are stop orders and stop notices under the Charging Orders Act 1979?
1. Stop orders: Prevents the debtor from performing any transfer, sale, payment, or other dealings with securities specified in the order.
2. Stop notices: Requires a person or body to refrain from specified actions without notice to the person who obtained the stop notice.
76
What is a third party debt order (TPDO)?
An order that requires a bank, building society, or other debtor to pay the money owed to the judgment creditor instead of the judgment debtor.
77
What are third party debt orders governed by?
Part 72
78
What form is used to apply for a TPDO?
Form N349 Application for Third Party Debt Order (must be verified by a statement of truth)
79
What must the application notice for a TPDO include?
1. Name and address of the judgment debtor.
2. Details of the judgment
3. The amount remaining due.
4. Name and address of the third party.
5. Evidence that the third party is indebted to the judgment debtor.
80
What are the key steps in the TPDO process?
1. Judgment creditor files application for a TPDO.
2. Application considered by a judge without a hearing.
3. Judge makes an interim TPDO (freezes amount) and sets a hearing date
4. Order served on third party (min 21 days before hearing) and judgment debtor (min 7 days after serving third party).
5. If judgment creditor serves order, they must file certificate of service (min 2 days before hearing or produces at hearing).
6. Bank carries out a search of judgment debtor's accounts
7. Judgment creditor/third party can object before hearing.
8. Judge considers whether the order should be final.
81
When might a judgment creditor consider issuing bankruptcy proceedings?
If the judgment debtor is an individual, or winding-up proceedings if the judgment debtor is a company.
82
What are some other methods available to judgment creditors?
1. Charging orders on securities.
2. Appointment of a receiver.
3. Bankruptcy or winding-up of companies.
4. Debt relief orders (DRO) for individuals with low income and debts.
83
Can multiple enforcement methods be used simultaneously?
Yes, except a party needs court permission to enforce a judgment by taking control of goods while an attachment of earnings order is in force.
84
What can a creditor do if they suspect a debtor is about to dispose of assets?
Apply for a freezing order to freeze the debtor's assets.
85
Under what conditions can a party recover costs of previous enforcement attempts?
Under s15(3) and s15(4) of the Courts and Legal Services Act 1990, a party can recover costs if they were not unreasonably incurred. The judgment creditor should make a without notice application on affidavit, attaching vouchers, receipts, or documents to verify the costs. However, this won't help if they are bankrupt.
86
What are the advantages and disadvantages of taking control of goods?
Advantage - Quick and relatively inexpensive.
Disadvantage - Debtor might pay to avoid goods being seized.
87
What are the advantages and disadvantages of third party debt orders?
Advantage - Discreet and very quick if funds are available.
Disadvantage - Only effective if there is money in the account.
88
What are the advantages and disadvantages of charging orders?
Advantage - Most effective with equity in property.
Disadvantage - Lengthy process, only useful with significant equity.
89
What are the advantages and disadvantages of attachment of earnings?
Advantage - Can prompt debtors to settle.
Disadvantage - Unsuitable if debtor changes jobs frequently, might involve employer.
90
What powers does the court have to ensure compliance with judgment orders?
1. Ordering the debtor to attend court to answer questions about finances.
2. Taking control of goods and selling them at auction.
3. Requiring a third party to pay the judgment creditor.
4. Securing the judgment debt against property with a charging order.
5. Requiring the debtor's employer to pay the judgment creditor through their salary, via an attachment of earnings order.
