Enforcement (W18)

Question 1

CPR 70.1A - Application for order

Answer 1

• If a fine is not paid in accordance with the order imposing it, the court officer shall, as soon as reasonably possible, report the matter to a judge.
• Where a fine is directed to be paid by instalments, default in the payment of any instalment may be taken as if default had been made in payment of the whole of the fine.
• If an order is made for payment of a fine to be enforced by warrant of control, the order shall be treated as an application to the court for the issue of the warrant at the time when the order was made.
• If a person pays a fine and later gives evidence to satisfy the court that, if the evidence had been given earlier, no fine or a smaller fine would have been imposed, the court may order the whole or part of the fine to be repaid.

Question 2

CPR 70.2 - Methods of enforcing judgments or orders

Answer 2

• Practice Direction 70A sets out methods of enforcing judgments or orders for the payment of money.
• A judgment creditor may, except where an enactment, rule or practice direction provides otherwise—
  (a) use any method of enforcement which is available; and
  (b) use more than one method of enforcement, either at the same time or one after another.

Question 3

CPR 70.2A - Court may order act to be done at expense of disobedient party

Answer 3

• “disobedient party” means a party who has not complied with a mandatory order, an injunction or a judgment or order for the specific performance of a contract.
• if a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, the court may direct that the act required to be done may, so far as practicable, be done by another person, being:
  (a) the party by whom the order or judgment was obtained; or
  (b) some other person appointed by the court.
• Where this applies:
  (a) the costs to another person of doing the act will be borne by the disobedient party;
  (b) upon the act being done the expenses incurred may be ascertained in such manner as the court directs; and
  (c) execution may issue against the disobedient party for the amount so ascertained and for costs.

Question 4

CPR 70.3 - Transfer of proceedings for enforcement

Answer 4

• a judgment creditor wishing to enforce a High Court judgment or order in the County Court must apply to the High Court for an order transferring the proceedings.
• A practice direction may make provisions about the transfer of proceedings for enforcement.

Question 5

CPR 70.4 - Enforcement of judgment or order by or against a non-party

Answer 5

If a judgment or order is given or made in favour of or against a person who is not a party to proceedings, it may be enforced by or against that person by the same methods as if he were a party.

Question 6

CPR 70.6 - Effect of setting aside judgment or order

Answer 6

If a judgment or order is set aside, any enforcement of the judgment or order shall cease to have effect unless the court otherwise orders.

Question 7

CPR 71.1 - Orders to obtain information from judgment debtors

Answer 7

Rules which provide for a judgment debtor to be required to attend court to provide information, for the purpose of enabling a judgment creditor to enforce a judgment or order against him.

Question 8

CPR 71.2 - Order to attend court

Answer 8

• A judgment creditor may apply for an order requiring:
  (a) a judgment debtor; or
  (b) if a judgment debtor is a company or other corporation, an officer of that body,
  to attend court to provide information about—
  (i) the judgment debtor’s means; or
  (ii) any other matter about which information is needed to enforce a judgment or order.
• An application:
  (a) may be made without notice; and
  (b) must be issued in the court or County Court hearing centre which made the judgment or order which it is sought to enforce, except that—
  (i) if the proceedings have since been transferred to a different court or hearing centre, it must be issued in that court; or
  (ii) subject to subparagraph (b)(i), if it is to enforce a judgment made in the County Court Money Claims Centre, it must be issued in accordance with section 2 of Practice Direction 70.
• The application notice must—
  (a) be in the form; and
  (b) contain the information
  required by Practice Direction 71.
• may be dealt with by a court officer without a hearing.
• A person served with an order issued under this rule must—
  (a) attend court at the time and place specified in the order;
  (b) when he does so, produce at court documents in his control which are described in the order; and
  (c) answer on oath such questions as the court may require.
• An order under this rule will contain a notice in the following terms, or in terms to substantially the same effect—
  “If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.”

Question 9

CPR 71.6 - Conduct of the hearing

Answer 9

• The person ordered to attend court will be questioned on oath.
• The questioning will be carried out by a court officer unless the court has ordered that the hearing shall be before a judge.
• The judgment creditor or his representative—
  (a) may attend and ask questions where the questioning takes place before a court officer; and
  (b) must attend and conduct the questioning if the hearing is before a judge.

Question 10

CPR 71.8 - Failure to comply with order

Answer 10

• If a person against whom an order has been made:
  (a) fails to attend court;
  (b) refuses at the hearing to take the oath or to answer any question; or
  (c) otherwise fails to comply with the order,
  the court will refer the matter to a High Court judge or Circuit Judge.
• That judge may, provided the judgment creditor has complied with rules 71.4 and 71.5, hold the person in contempt of court and make an order punishing them by a fine, imprisonment, confiscation of assets or other punishment under the law.
• If such an order is made, the judge will direct that—
  (a) the order shall be suspended, provided that the person—
  (i) attends court at a time and place specified in the order; and
  (ii) complies with all the terms of that order and the original order; and
  (b) if the person fails to comply with any term on which the order is suspended, they shall be brought before a judge to consider whether the order should be discharged.

Question 11

CPR 72.1 - Third party debt orders

Answer 11

Rules which provide for a judgment creditor to obtain an order for the payment to him of money which a third party who is within the jurisdiction owes to the judgment debtor.

Question 12

CPR 72.2 - Third party debt order

Answer 12

• Upon the application of a judgment creditor, the court may make an order (a “final third party debt order”) requiring a third party to pay to the judgment creditor:
  (a) the amount of any debt due or accruing due to the judgment debtor from the third party; or
  (b) so much of that debt as is sufficient to satisfy the judgment debt and the judgment creditor’s costs of the application.
• The court will not make an order under paragraph 1 without first making an order (an “interim third party debt order”) as provided by rule 72.4(2).

Question 13

CPR 72.3 - Application for third party debt order

Answer 13

An application for a third party debt order—
(a) may be made without notice; and
(b) must be issued in the court which made the judgment or order which it is sought to enforce, except that:
(i) if the proceedings have since been transferred to a different court, it must be issued in that court; or
(ii) subject to subparagraph (b)(i), if it is to enforce a judgment made in the County Court Money Claims Centre, it must be issued in accordance with section 2 of Practice Direction 70.
(2) The application notice must—
(i) be in the form; and
(ii) contain the information
required by Practice Direction 72; and
(b) be verified by a statement of truth.

Question 14

CPR 73.3 - Application for charging order

Answer 14

• An application for a charging order may be made without notice.
• Where an application for a charging order is to be made to the County Court, it must be made to the County Court Money Claims Centre, unless the application is for a charging order over an interest in a fund in court.
• An application to the County Court for a charging order over an interest in a fund in court must be made to the County Court hearing centre where the order or judgment was made.
• a judgment creditor may apply for a single charging order in respect of more than one judgment or order against the same judgment debtor.
• The application notice must—
  (a) be in the form and contain the information required by Practice Direction 73; and
  (b) be verified by a statement of truth.

Question 15

CPR 83.2 - Writs and warrants of control, writs of execution, warrants of delivery and warrants of possession—permission to issue certain writs or warrants

Answer 15

• This rule applies to—
  (a) writs and warrants of control;
  (b) writs of execution;
  (c) warrants of delivery;
  (d) warrants of possession.
• A relevant writ or warrant must not be issued without the permission of the court where:
  (a) six years or more have elapsed since the date of the judgment or order;
  (b) any change has taken place, whether by death or otherwise, in the parties:
  (i) entitled to enforce the judgment or order; or
  (ii) liable to have it enforced against them;
  (c) the judgment or order is against the assets of a deceased person coming into the hands of that person’s executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets;
  (d) any goods to be seized under a relevant writ or warrant are in the hands of a receiver appointed by a court or sequestrator;
  (e) under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled (other than where non-compliance with the terms of suspension of enforcement of the judgment or order is the failure to pay money);
  (f) the permission sought is for a writ of control or writ of execution, and that writ is to be in aid of another writ of control or execution; or
  (g) an application is made for a writ of sequestration.
• An application for permission may be made in accordance with Part 23 and must—
  (a) identify the judgment or order to which the application relates;
  (b) if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed;
  (c) state the reasons for the delay in enforcing the judgment or order;
  (d) state the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;
  (e) state that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that that person has refused or failed to do so;
  (f) give such other information as is necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment or order, and that the person against whom it is sought to issue execution is liable to execution on it.
• An application for permission may be made without notice being served on any other party unless the court directs otherwise.
• If because of one event, an applicant seeks permission under paragraph (3)(b) to enforce more than one judgment or order, the applicant need only make one application for permission.
• If this applies, (a) a schedule must be attached to the application for permission, specifying all the judgments or orders in respect of which the application for permission is made; and (b) if the application notice is directed to be served on any person, it need set out only such part of the application as affects that person.
• Where—
  (a) the court grants permission, under this rule or otherwise, for the issue of a writ of execution or writ of control (“the permission order”); and
  (b) the writ is not issued within one year after the date of the permission order,
  the permission order will cease to have effect.
• Where a permission order has ceased to have effect, the court may grant a fresh permission order.

Question 16

CPR 84.3 - Where and how to make applications for taking control of goods

Answer 16

• Applications referred to in this Part must be made in accordance with the procedure in Part 23 as modified by this Part.
• Where there are no pre-existing proceedings, an application referred to in this Part must be made to the County Court.
• Where there are pre-existing proceedings, the application must be made to the High Court or the County Court

Question 17

CPR 89.3 - Where to make applications for attachment of earnings orders

Answer 17

An application to the County Court for an attachment of earnings order must be made to the County Court Money Claims Centre.

Question 18

CPR 89.4 - Mode of applying for attachment of earnings orders

Answer 18

• An application for an attachment of earnings order must include a certificate of the amount of money remaining due under the judgment or order and that the whole or part of any instalment due remains unpaid.
• Where an attachment of earnings order is sought to enforce an order of a magistrates’ court, the applicant must also file with the application:
  (a) a certified copy of the order; and
  (b) a witness statement verifying the amount due under the order or, if payments under the order are required to be made to the designated officer for the magistrates’ court, a certificate by that designated officer to the same effect.

Question 19

40BPD - Correction of errors in judgments and orders

Answer 19

• Where a judgment or order contains an accidental slip or omission a party may apply for it to be corrected.
• The application notice (which may be an informal document such as a letter) should describe the error and set out the correction required. An application may be dealt with without a hearing—
  (1) where the applicant so requests,
  (2) with the consent of the parties, or
  (3) where the court does not consider that a hearing would be appropriate.
• The judge may deal with the application without notice if the slip or omission is obvious or may direct notice of the application to be given to the other party or parties.
• If the application is opposed it should, if practicable, be listed for hearing before the judge who gave the judgment or made the order.
• The court has an inherent power to vary its own orders to make the meaning and intention of the court clear.

Question 20

40BPD.8 - Orders requiring an act to be done

Answer 20

• An order which requires an act to be done (other than a judgment or order for the payment of an amount of money) must specify the time within which the act should be done.
• The consequences of failure to do an act within the time specified may be set out in the order. In this case the wording of the following examples suitably adapted must be used:
• Unless the [claimant][defendant] serves his list of documents by 4.00pm on Friday, 22 January 1999 his [claim][defence] will be struck out and judgment entered for the [defendant][claimant], or
• Unless the [claimant][defendant] serves his list of documents within 14 days of service of this order his [claim][defence] will be struck out and judgment entered for the [defendant][claimant].

Question 21

70PD1.1 - Methods of enforcing money judgments

Answer 21

A judgment creditor may enforce a judgment or order for the payment of money by any of the following methods:

(1) a writ of control or warrant of control
(2) a third party debt order
(3) a charging order, stop order or stop notice
(4) in the County Court, an attachment of earnings order
(5) the appointment of a receiver.

Question 22

71PD.1 - Application notice for an order to obtain information

Answer 22

• An application by a judgment creditor under rule 71.2(1) must be made by filing an application notice in Practice Form N316 if the application is to question an individual judgment debtor, or N316A if the application is to question an officer of a company or other corporation.
• The application notice must—
  (1) state the name and address of the judgment debtor;
  (2) identify the judgment or order which the judgment creditor is seeking to enforce;
  (3) if the application is to enforce a judgment or order for the payment of money, state the amount presently owed by the judgment debtor under the judgment or order;
  (4) if the judgment debtor is a company or other corporation, state—
  (a) the name and address of the officer of that body whom the judgment creditor wishes to be ordered to attend court; and
  (b) his position in the company;
  (5) if the judgment creditor wishes the questioning to be conducted before a judge, state this and give his reasons;
  (6) if the judgment creditor wishes the judgment debtor (or other person to be questioned) to be ordered to produce specific documents at court, identify those documents; and
  (7) if the application is to enforce a judgment or order which is not for the payment of money, identify the matters about which the judgment creditor wishes the judgment debtor (or officer of the judgment debtor) to be questioned.
• The court officer considering the application notice—
  (1) may, in any appropriate case, refer it to a judge (rule 3.2); and
  (2) will refer it to a judge for consideration, if the judgment creditor requests the judgment debtor (or officer of the judgment debtor) to be questioned before a judge.

Question 23

71PD.2 - Order to attend court

Answer 23

• The order will provide for the judgment debtor (or other person to be questioned) to attend the County Court hearing centre serving the address where the judgment debtor resides or carries on business, unless a judge decides otherwise.
• The order will provide for questioning to take place before a judge only if the judge considering the request decides that there are compelling reasons to make such an order.

Question 24

71PD.4 - Attendance at court: normal procedure—rule 71.6

Answer 24

• The court officer will ask a standard series of questions, as set out in the forms in Appendixes A and B to this practice direction. The form in Appendix A will be used if the person being questioned is the judgment debtor, and the form in Appendix B will be used if the person is an officer of a company or other corporation.
• The judgment creditor or his representative may either—
  (1) attend court and ask questions himself; or
  (2) request the court officer to ask additional questions, by attaching a list of proposed additional questions to his application notice.
• The court officer will—
  (1) make a written record of the evidence given, unless the proceedings are tape recorded;
  (2) at the end of the questioning, read the record of evidence to the person being questioned and ask him to sign it; and
  (3) if the person refuses to sign it, note that refusal on the record of evidence.

Question 25

71PD.5 - Attendance at court: procedure where the order is to attend before a judge—rule 71.6

Answer 25

- Where the hearing takes places before a judge, the questioning will be conducted by the judgment creditor or his representative, and the standard questions in the forms in Appendixes A and B will not be used. - The proceedings will be tape recorded and the court will not make a written record of the evidence.

Question 26

72PD.1 - Application notice for third party debt orders

Answer 26

- An application for a third party debt order must be made by filing an application notice in Practice Form N349. - The application notice must contain the following information— (1)the name and address of the judgment debtor; (2)details of the judgment or order sought to be enforced; (3)the amount of money remaining due under the judgment or order; (4)if the judgment debt is payable by instalments, the amount of any instalments which have fallen due and remain unpaid; (5)the name and address of the third party; (6)if the third party is a bank or building society— (a)its name and the address of the branch at which the judgment debtor’s account is believed to be held; and (b)the account number; or, if the judgment creditor does not know all or part of this information, that fact; (7)confirmation that to the best of the judgment creditor’s knowledge or belief the third party— (a)is within the jurisdiction; and (b)owes money to or holds money to the credit of the judgment debtor; (8)if the judgment creditor knows or believes that any person other than the judgment debtor has any claim to the money owed by the third party— (a)his name and (if known) his address; and (b)such information as is known to the judgment creditor about his claim; (9)details of any other applications for third party debt orders issued by the judgment creditor in respect of the same judgment debt; and (10)the sources or grounds of the judgment creditor’s knowledge or belief of the matters referred to - The court will not grant speculative applications for third party debt orders, and will only make an interim third party debt order against a bank or building society if the judgment creditor’s application notice contains evidence to substantiate his belief that the judgment debtor has an account with the bank or building society in question.

Question 27

73PD.1 - Application notice for charging orders

Answer 27

- An application for a charging order must be made by filing an application notice in Practice Form N379 if the application relates to land, or N380 if the application relates to securities. - The application notice must contain the following information— (1) the name and address of the judgment debtor; (2) details of the judgment or order sought to be enforced; (3) the amount of money remaining due under the judgment or order; (4) if the judgment debt is payable by instalments— (a) whether the order was made on or after 1 October 2012; and (b) the amount of any instalments which have fallen due and remain unpaid; (5) if the judgment creditor knows of the existence of any other creditors of the judgment debtor, their names and (if known) their addresses; (6) identification of the asset or assets which it is intended to charge including, where applicable, the title number under which any land upon which it is sought to impose a charge is registered; (7) details of the judgment debtor’s interest in the asset; and (8) the names and addresses of the persons on whom an interim charging order must be served under rule 73.7. - A judgment creditor may apply in a single application notice for charging orders over more than one asset, but if the court makes interim charging orders over more than one asset, it will draw up a separate order relating to each asset.

Question 28

CPR 70.3.1 - Transfer to the county court for enforcement

Answer 28

The most common reason for transferring from the High Court to the County Court for enforcement purposes is that the County Court has exclusive jurisdiction to make an order under the Attachment of Earnings Act 1971

Question 29

CPR 70.3.2 - Transfer to High Court for enforcement

Answer 29

- The most common reason for transferring from the County Court to the High Court for enforcement is to use a High Court Enforcement Officer to levy execution. - Only where the sum which it is sought to enforce is less than £600 or the judgment arises out of an agreement regulated by the Consumer Credit Act 1974 must the judgment be enforced in the County Court. - In other cases the judgment can—and if it is sought to enforce £5000 or more must—be enforced in the High Court.

Question 30

CPR 71.0.1 - Oral examination

Answer 30

- It is for the judgment creditor, not the court, to enforce the judgment. - Part 71 enables the judgment creditor to obtain information from the judgment debtor for the purpose of being able to better decide which method or methods of enforcement to use. - requirements of service - pay travelling expenses if requested

Question 31

CPR 72.0.1 - Third party debt orders

Answer 31

- If a judgment debtor is owed money by a third party the judgment creditor can obtain an order that the third party should pay the judgment creditor. - The order is obtained without notice on an interim basis. A hearing follows when the court decides whether or not to make a final third party debt order. - A bank account in credit is a debt due by the bank to its customer. Consequently a judgment creditor who has the bank details of the judgment debtor can obtain a third party debt order against the bank. - The procedure requires the third party bank or building society to search and disclose information to the court and judgment creditor. Any third party, or judgment debtor, who objects to the making of the order must file and serve written evidence stating the grounds for the objection.

Question 32

CPR 72.2.15 - Debt due to judgment debtor and another

Answer 32

Not possible to obtain a garnishee order (now a third party debt order) against a bank account in the joint names of the debtor and his wife.

Question 33

CPR 73.0.1 - Charging orders

Answer 33

- debtor is required to pay a sum of money to a judgment creditor then, for the purpose of enforcing that judgment or order, the court may make an order (a “charging order”) imposing on such property of the judgment debtor as may be specified in the order, a charge for securing the payment of any money due under the judgment or order. - four kinds of charging order: a charging order on land (the most common); a charging order on securities; a charging order over a judgment debtor’s interest in a fund in court; and a charge over the judgment debtor’s interest in partnership property. - A charging order on land provides the judgment creditor with security equivalent to a mortgage over the land specified in the order. It is, of course, subject to any prior mortgages and charges. - Subsequently, the judgment creditor can apply for an order for sale so that, subject to prior encumbrances, they can be paid their judgment debt (and accrued interest) out of the proceeds of sale. - Most charging orders are made in the County Court. The High Court jurisdiction is limited by s.1 of the Charging Orders Act 1979. The only situation where the High Court has exclusive jurisdiction is where the property to be charged is a fund lodged in the High Court. In all other cases where there is a High Court judgment the County Court has a concurrent jurisdiction to make charging orders. In the case of a County Court judgment (or a fund lodged in a County Court), the County Court has exclusive jurisdiction. The jurisdiction of the County Court to make a charging order over land is unlimited. - An application for a charging order over a judgment debtor’s interest in a fund in court must be made to the County Court hearing centre at which the order or judgment was made. - An “interim charging order” (see r.73.4) is obtained without notice. Under the new procedure, if the application is made to the County Court Money Claims Centre and relates to the judgment debtor’s interest in land, it will be dealt with by a court officer unless one of the exceptions listed in r.73.4(4) applies, in which event the application will be referred to a District Judge. Applications made to the County Court Money Claims Centre other than those which may be dealt with by court officers (e.g. applications for a charging order over securities) will be referred to a District Judge or legal adviser. - Information on land owned by the judgment debtor, if not already known by the judgment creditor, can be obtained at a hearing. - leave to inspect the Land Register is not necessary and anyone can search against any property. An official copy is frequently used as evidence of the judgment debtor’s ownership. Searches can, of course, be made on the internet. - requirement for service on the judgment debtor’s spouse or civil partner (where known) - In the absence of any response from the judgment debtor (or any other person served with notice of the application) by way of objection to the making of a charging order, within the time permitted by r.73.10(2), the application will be referred to the District Judge or legal adviser, without a hearing, for the making of a final charging order or such other order as the District Judge considers appropriate. - If an objection is filed, the application will be sent to the judgment debtor’s home court for the fixing of a hearing before the District Judge or legal adviser. Notice of any such hearing will be served by the court on the parties and on any other person in respect of whom the judgment debtor as filed a certificate of service in relation to the application and the interim charging order. - In those cases where the interim charging order is made other than at the County Court Money Claims Centre, the former procedure for consideration of the making of a final charging order is preserved in that a hearing date will be fixed.

Question 34

CPR 73.0.4 - Charging order on matrimonial home

Answer 34

(1) If the property is in the sole name of the judgment debtor—or owned jointly by spouses who are both judgment debtors—the charge will be against the land itself. (2) A charging order can be made in respect of land which the debtor owns jointly with another. However, the order ranks as a charge on the debtor’s beneficial interest rather than upon the land itself. (3) Rule 73.7(7)(c) now expressly requires service on the judgment debtor’s spouse or civil partner, if known. (4) Where an interim order has been made after a petition for divorce the court will usually order that the application for a final order is heard alongside the ancillary relief proceedings in the divorce and if necessary transfer the application to the divorce court for that purpose. (5) Where an interim order has been made but there are no divorce proceedings there is no reason for refusing a final order. A spouse’s right of occupation can be adequately protected under s.14 of the Trusts of Land and Appointment of Trustees Act 1996 in the event of proceedings to enforce the charge. (6) A judgment creditor is justified in expecting that an interim order over one spouse’s beneficial interest will be made final. The court must consider if there is any point in denying the creditor their charge if in any event a spouse’s right of occupation could be defeated by the creditor making the judgment debtor bankrupt. (7) As a general rule, in any contest between a judgment creditor and a joint owner of the property or any adult or child resident therein, the interests of the judgment creditor will, sooner or later, prevail.

Question 35

CPR 83.0.2 - Enforcement of judgments generally

Answer 35

It is still a feature of the civil justice system that judgments are not enforced automatically by the court. It is for the judgment creditor to decide when and how to enforce the judgment.

Question 36

CPR 83.0.3 - Writs and warrants of control

Answer 36

- writs and warrants of control enable the taking control and sale of goods - This authority to take control of goods is solely to recover money. Writs/warrants of control are the mode for the enforcement of a money judgment by the seizure and sale of the debtor’s goods and chattels sufficient to satisfy the judgment debt and costs of the execution. - The priority of a writ of control is determined by when it is delivered to the relevant enforcement officer, whereas the priority of a warrant of control is determined by reference to the date upon which it was issued. - The court may set aside a writ of control.

Question 37

CPR 83.0.17 - County court judgments

Answer 37

By virtue of art.8 of the High Court and County Courts Jurisdiction Order 1991 (SI 1991/724), a judgment or order of a county court for the payment of a sum of money which it is sought to enforce wholly or partially by execution against goods: (a) shall be enforced only in the High Court where the sum which it is sought to enforce is £5,000 or more and the proceedings in which the judgment or order was obtained did not arise out of an agreement regulated by the Consumer Credit Act 1974; (b) shall be enforced only in the county court where the sum which it is sought to enforce is less than £600; (c) in any other case may be enforced in either the High Court or in a county court.

Question 38

CPR 84.0.2 - Taking control of goods

Answer 38

- In simple terms the taking control of goods process is as follows: (a) the enforcement agent gives notice of enforcement to the debtor (b) the debtor either makes contact with the enforcement agent and pays the debt or enters into an arrangement for payment which is maintained or the enforcement agent takes control of goods. (c) goods may be taken control of by the enforcement agent in four ways: (1) securing goods on premises, (2) securing goods on a highway, (3) removing goods and storing them elsewhere, (4) entry into a controlled goods agreement. (d) the goods are sold at public auction (e) the proceeds of sale are used to pay the amount outstanding—which includes the debt and costs - Items that do not belong to the debtor are protected from seizure by the enforcement agent. - At various junctures the enforcement agent may make applications to the court. These are: • to shorten the period for notice to the debtor of enforcement • to extend the prescribed period within which the enforcement agent may take control of goods • to take control of goods during prohibited periods • to enter, re-enter or remain on premises outside permitted hours • to re-enter premises giving less than the minimum period of notice • to issue a warrant in respect of specified premises and to use reasonable force to enter premises • to use reasonable force in respect of goods on a highway • to sell other than by public auction • to deal with abandoned goods • to obtain exceptional disbursements. - The debtor, creditor, any co-owner and enforcement agent may also make applications to resolve disputes about the co-owner’s share of proceeds and about the recoverable fees and expenses. - The debtor may also make an application for a remedy in relation to goods taken into control.

Question 39

CPR 84.0.2 - Taking control of goods

Answer 39

- In simple terms the taking control of goods process is as follows: (a) the enforcement agent gives notice of enforcement to the debtor (b) the debtor either makes contact with the enforcement agent and pays the debt or enters into an arrangement for payment which is maintained or the enforcement agent takes control of goods. (c) goods may be taken control of by the enforcement agent in four ways: (1) securing goods on premises, (2) securing goods on a highway, (3) removing goods and storing them elsewhere, (4) entry into a controlled goods agreement. (d) the goods are sold at public auction (e) the proceeds of sale are used to pay the amount outstanding—which includes the debt and costs - Items that do not belong to the debtor are protected from seizure by the enforcement agent. - At various junctures the enforcement agent may make applications to the court. These are: • to shorten the period for notice to the debtor of enforcement • to extend the prescribed period within which the enforcement agent may take control of goods • to take control of goods during prohibited periods • to enter, re-enter or remain on premises outside permitted hours • to re-enter premises giving less than the minimum period of notice • to issue a warrant in respect of specified premises and to use reasonable force to enter premises • to use reasonable force in respect of goods on a highway • to sell other than by public auction • to deal with abandoned goods • to obtain exceptional disbursements. - The debtor, creditor, any co-owner and enforcement agent may also make applications to resolve disputes about the co-owner’s share of proceeds and about the recoverable fees and expenses. - The debtor may also make an application for a remedy in relation to goods taken into control.

Question 40

CPR 84.0.3 - Controlled goods agreement

Answer 40

- A controlled goods agreement is one of the four ways that an enforcement agent may take control of goods. - This is an agreement under which the enforcement agent and the debtor agree terms for the repayment by the debtor of the sum outstanding under the judgment or order. The agreement must be in writing and be signed by the enforcement agent and the debtor, a person authorised by him (over 18 years old), or a person in apparent authority on premises used, in part or wholly, to carry on a trade or business. - The debtor must be provided with a copy of the agreement, regardless of whether or not it is the debtor or someone with authority or apparent authority who actually enters into the agreement.

Question 41

CPR 89.0.1 - Attachment of earnings orders

Answer 41

- the County Court can make an attachment of earnings order to secure payments under a High Court or County Court judgment where the judgment debt, or the amount remaining payable under the judgment is not less than £50, or payments under an administration order. - the majority of attachment orders are made in the County Court and, administratively, there is a centralised system for collection. The procedure is very effective where the debtor is in employment with sufficient earnings. For a creditor the procedure is very simple, usually involving only the completion of the Request for an Attachment of Earnings Order (Form N337) and payment of the prescribed fee: the court does the rest.

Question 42

s.6 Attachment of Earnings Act 1971 - Effect and contents of order

Answer 42

An attachment of earnings order shall be an order directed to a person who appears to the court, or as the case may be the fines officer, making the order to have the debtor in his employment and shall operate as an instruction to that person— (a) to make periodical deductions from the debtor’s earnings (b) at such times as the order may require, or as the court, or where the order is made under Schedule 5 to the Courts Act 2003 as the court or the fines officer as the case may be, may allow, to pay the amounts deducted to the collected officer of the court, as specified in the order. - the relationship of employer and employee shall be treated as subsisting between two persons if one of them, as a principal and not as a servant or agent, pays to the other any sums defined as earnings by section 24 of this Act. - An attachment of earnings order shall contain prescribed particulars enabling the debtor to be identified by the employer. - Except where it is made to secure maintenance payments, the order shall specify the whole amount payable under the relevant adjudication (or so much of that amount as remains unpaid), including any relevant costs. - Subject to subsection (5A) below, the order shall specify— (a) the normal deduction rate, that is to say, the rate (expressed as a sum of money per week, month or other period) at which the court thinks it reasonable for the debtor’s earnings to be applied to meeting his liability under the relevant adjudication; and (b) the protected earnings rate, that is to say the rate (so expressed) below which, having regard to the debtor’s resources and needs, the court thinks it reasonable that the earnings actually paid to him should not be reduced.

Question 43

Types of enforcement methods

Answer 43

- Writs/warrants of control (taking control of goods) - Third party debt orders - Charging orders - Attachment of earnings orders

Question 44

Taking control of goods

Answer 44

- allows an enforcement officer to seize a judgment debtor's goods and sell them to use the proceeds of sale to pay the judgment debt - essential that the goods it is enforced against are owned by the judgment debtor and that there are no third party claims to the goods.

Question 45

Goods exempt from taking control of goods orders

Answer 45

- can generally be used against any goods - tools of the debtor's trade are exempt, up to a value of £1,350 - basic domestic items are exempt

Question 46

Which court for taking control of goods

Answer 46

- The judgment creditor can apply for TCG as soon as judgment has been obtained and the judgment debtor has failed to pay - High Court and County procedures are different - Financial limits: up to £600, have to use County Court between £600 and £5,000 can choose more than £5,000, have to use High Court

Question 47

Giving notice to the judgment debtor of enforcement

Answer 47

- Enforcement officer needs to write to the judgment debtor at least 7 days prior to taking control of any goods - Enforcement officer is not required to specify exactly when he takes the goods

Question 48

Third party debt orders

Answer 48

- Cannot be obtained on a joint bank account in the name of a third party and their spouse.

Question 49

Third party debt orders procedure

Answer 49

- Requires the third party to search for and disclose information to the court and judgment creditor. - Any third party who objects must file and serve written evidence stating the grounds for objection - There will first be an interim order without notice to the judgment debtor. This will be served on the third party first and prevents the third party from making any payment to the judgment debtor until a further order is made. - The interim order will then be served on the judgment debtor and will be followed by an on notice hearing and the court will decide whether to make a final order.

Question 50

Charging orders on land or certain securities

Answer 50

- A charge taken over land or certain other assets which secures a judgment debt. - Will generally remain in place until the property is sold by the debtor, at which point the debt will be paid. - It is subject to any prior mortgages and charges, and the overriding rights of co-owners. - Follows a similar two stage process like third party debt orders. - After the final order, the judgment creditor may want to force the sale process rather than wait for it to happen, in which case an application needs to be made for an order for sale. - Process can be lengthy

Question 51

Attachment of earnings orders

Answer 51

- available only in the County Court - available where the judgment debt outstanding is more than £50 - Most relevant where a judgment debtor does not have substantial assets but earns a regular salary

Question 52

Attachment of earnings procedure

Answer 52

- Filing an application in the standard form - Served on the judgment debtor who completes and serves a reply form - The court may then make an order. - That order is served on the debtor and their employer

Question 53

Problems with attachment of earnings orders

Answer 53

- A debtor is not obliged to stay int he same job so the creditor might have to go through the whole process again - Opportunity for delay if the debtor does not file the reply on time - Can lead to the judgment debtor being imprisoned if they continue to ignore orders to return the reply