Obtaining judgment is often the straight forward part of debt recovery. The key to a successful outcome is effective enforcement to make sure you actually get the money owed to you. There are various ways of doing this to include high court enforcement officers, third party debt order, charging order, attachment of earnings order or an order to attend court for questioning.
Our lawyers can carry out investigations to determine the assets and income of the debtor against which enforcement action can be taken. We can then advise on the most suitable method of enforcement including
High Court Enforcement Officers
High Court Enforcement Officers (HCEO) are the most common method of enforcing unpaid county court judgments/money judgments.
We can arrange to for your county court judgment to be transferred to the High Court for enforcement. The High Court will issue a Writ of Control which will then enables HCEO to contact the debtor with a view to collecting payment of the debt owed to you. Where necessary HCEO will seize the debtor’s goods and recover their financial value at public auction. Without these assets the officers will attempt to make payment arrangements or obtain information that will be useful when deciding whether to pursue an alternative enforcement method. High Court Enforcement Officers are paid on results and therefore they will make every effort to ensure they collect the debt owed to you.
What powers do High Court Enforcement Officers have?
Once HCEO have obtained a Writ of Control from the High Court they have the power to visit the premises of the debtor and take control of goods or assets with a view to selling them at auction to satisfy the debt owed to the judgment creditor.
Can High Court Enforcement Officers be instructed for any money judgment?
HCEO can be instructed if the Judgment is over £600.00 and the debt is not covered by the Consumer Credit Act.
What is the difference between a High Court Enforcement Officer and a County Court Bailiff?
HCEO are often confused with County Court Bailiffs but there is a significant difference in the authority they have. If your Judgment is over the £600.00 threshold and not regulated by the Consumer Credit Act we would always recommend that you use HCEO. HCEO are also paid on results and therefore they have the incentive to leave no stone unturned when trying to obtain payment of the debt or negotiate the very best payment arrangement possible.
Can you instruct the High Court Enforcement Officers on my behalf?
Yes we can. To instruct High Court Enforcement Officers, we need to obtain a Writ of Control which is done without the need for a court hearing. We can deal with the complete process for you and provide you with updates from HCEO on their progress.
What is the Process when the High Court Enforcement Officers are instructed?
In 2014, the Taking of Control Regulations came into force which implemented significant changes. Once a Writ of Control is obtained the Enforcement Officers are required to send a Notice of Enforcement which gives 7 days to make payment. The notice will provide information on the consequences of not paying and a warning that assets can be seized and sold at auction. The Notice of Enforcement also illustrated that prompt payment will ensure collection costs are kept at a minimum and often payment is received upon a Notice of Enforcement being sent to the judgment debtor. If payment is not received at this stage and a visit is made, the cost that the Judgment debtor will be required to pay will increase considerably.
Can the High Court Enforcement Officers force entry in a premises?
It depends on the type of premises.
Commercial- yes, they can force entry on the first visit as long as the commercial premises is not attached to a residential property and the Officer has reasonable grounds to believe that goods or assets of the judgment debtor are inside.
Residential- The Officers are only allowed to obtain peaceful entry. Eg, if they are invited in or the door is unlocked. Once peaceful entry has been obtained they cannot be forcibly removed and if they are they can re-enter, forcibly if necessary.
Can I use two methods of enforcement action at the same time?
Yes. If judgment debtor owns a property we would always recommend you secure the debt by obtaining a Charging Order in addition to instructing HCEO. The two work actions work very effectively together. If the debtor does not own a property but you know who the judgment debtor banks with, read the section on Third Party Debt Orders.
How long does it take to instruct the High Court Enforcement Officers?
It takes around two weeks for the Writ of Control to be obtained from the High Court.
Third party debt orders
A third party debt order can be used to enforce payment of an unsatisfied County Court Judgment (CCJ). An application can be made to the court to obtain money owed to the judgment debtor (“debtor”) from a third party. The third party is most commonly the debtor’s bank account but it can also be used if you know that a third party is due to make payment to the debtor.
A third party debt order is an application that is made to the court without notice to the debtor and therefore the debtor will only become aware of your application once the funds have been frozen. It stands to reason that if the debtor is aware you are making the application and the third party is their bank, they would remove any funds from their account to keep it from your reach.
Once an application for a third party debt order has been made to the court, the court will issue an Interim Order that will be served on the third party. Once the Interim Order has been served the third party is required to freeze any sums owed to the debtor up to the judgment amount. The funds will be held by the third party pending a final court hearing where the court will make an order in respect of the release of the funds to the judgment creditor.
Do I need to know the debtors bank account number and sort code?
No, all you need to know is who the debtor banks with, eg Barclays Bank
I have the debtor’s bank account details but I think they may have more than one bank account.
The bank will search all accounts that the debtor has with them.
What is the debtor’s bank account is a joint account?
Funds cannot be frozen if the account is held jointly.
How can we be sure that the debtor will have sufficient funds in the account to pay the judgment debt?
Unfortunately you can’t. A third party debt order is very much a hit and hope application. The third party is required to search the account on the day the order is served on them. Timing is therefore important. For example, if the debtor gets paid on the 25th of the month it is possible that they live in their overdraft prior to pay day. If that is the case and the bank search the account, no funds would be available. If however, you serve the order on the 26th of the month, the debtor would have been paid and it would be likely that funds would be in the account and therefore they would be frozen. The same principle applies if the third party owes money to the debtor as part of a contract. The third party debt order will only freeze funds if the funds are due to be paid to the debtor at the time the order is served. If they have not yet fallen due, then funds cannot be frozen.
If funds are frozen, can the debtor dispute them being paid to the creditor?
The debtor can make an application for a hardship payment order if the freezing of the funds prevents them from meeting their ordinary living expenses.
Can the debtor object to the third party debt order?
Yes, this is again rare. To do so they must file and serve written grounds of objection. An example of an objection is that a person other than the debtor has a claim on the money that has been frozen.
What happens at the final hearing?
Usually the court will make a final third party debt order. Alternatively the court could discharge the interim order and dismiss the application of decide any issues of dispute and give further directions.
What happens if the debtor does not have any money in their account?
We would need to update the court and request the final hearing does not take place as no funds are available.
A charging order is an essential consideration to make if the judgment debtor owns property, land or shares. Whilst this is not typically a method of enforcing a county court judgment/money judgment, it does provide security of the debt owed to you.
A charging order creates an equitable charge over property, land or shares and entitles the judgment creditor to interest until payment is received, the interest is currently set at 8% above base rate per annum.
We regularly advise judgment creditors on their options to seek security over property and other assets and whether this is an option they should consider following consideration of the sums owed and the value of the asset.
What is a charging order?
An order obtained from the court by a Judgment creditor which charges the property, land, stocks or shares of the judgment debtor.
Can a charging order be obtaining if the property is owned jointly by someone who is not party to the Judgment debt.
Yes, the charging order will create an equitable charge over the judgment debtor’s beneficial interest only, the beneficial interest of the co-owner who is not a party to the judgment will not be affected.
How can I obtain a charging order?
Once a money Judgment has been obtained you can make an application to the court for a charging order. It is a two stage process, firstly you need to apply for an interim order, if this is approved the interim order will need to be served on all interest parties and you will need to apply to the Land Registry to register the interim order. The final charging order will be decided by a Judge without a hearing unless a formal objection is sent to court. If this is the case, a hearing will requited.
If I instruct a lawyer, can I recover my legal costs?
The court will allow fixed costs pursuant to CPR 45.
Will interest accrue on the debt owed?
Yes, interest will accrue at 8% above base rate per annum.
Do I have to wait for the owner to decide to sell the property before I will recover my money?
No, you have the option to obtain an order for sale if the Judgment debt is over £1,000.
If the Judgment is being paid by instalments, can I still obtain a charging order so the debt is secured?
Yes, The Tribunals, Courts & Enforcement Act 2007 introduced a change in 2012 to allow a Judgment Creditor to secure the debt owed to them even if there has not been a default on instalments.
Does the Judgment debt need to be a certain amount?
No, but the Judgment debt will need to be over £1000.00 to apply for an order for sale.
What happens if there are other charges already registered on the property?
You can still obtain a charging order but you should note that charges are paid in order of the date they are obtained. If there are five prior charges, your debt will be settled subject to their being sufficient equity in the property.
Order for sale following a charging order
You have taken the step to secure your debt by way of a Charging Order but what next? You want your money but despite notifying the debtor of your intention to obtain a charging order and having notified the debtor the charging order has been obtained, payment remains outstanding.
You have the option to leave the charge in place and the debt will accrue 8% interest per annum. But what if you want your money now?Well the next step would be to make an application to the court for an Order for Sale of the property with a view to obtaining a court order to force the sale of the property to enable payment of the debt owed.
When considering whether to make an application for an order for sale, it is important that some investigation work is carried out to ascertain if there is likely to be sufficient equity in the property to satisfy the Judgment debt.
The starting point of the investigation is to review the Office Copy Entry that is held at the Land Registry. This will reveal the date the property was purchased and in some instances the price. The Office Copy Entry will also reveal if there is a mortgage or any other charges on the property. However, it will not reveal the amount owed. We would consider the date when the property was purchased and the purchase price alongside an estimate of the properties current value. As a rule of thumb, if the property was purchased several years ago it would usually have increased in value and therefore have equity in the property, particularly if the only charge on the Office Copy Entry is a mortgage on the date the property was purchased.
Often the application for an Order for Sale will prompt the Judgment debtor to contact you and make payment or enter into an agreeable payment proposal.
What is an Order for Sale?
A court order that forces the sale of the debtor’s property that is subject to a charging order.
What is the benefit of apply for an order for sale?
To prompt payment of the debt secured by the charging order. This could be by the debtor making payment or by agreeing a repayment schedule or by the court granting an order that the property be sold.
Can force the sale of a jointly owned property if only one of the owners is a judgment debtor?
Yes. In this instance you will need to apply under the Trusts of Land and Appointment of Trustees Act 1996.
What factors are relevant when the court decide to grant or refuse an order for sale?
An order for sale is granted at the courts discretion. It is unclear exactly what the scope of the discretion is but the information required on the application indicates the court will consider any prior charges over the property, the sums owed to the judgment creditor, the value of the property, the judgment debtors interest in the property and the ages of the occupants of the property and any other Human Rights issues.
I obtained a County Court Judgment that the court ordered be paid by instalments. I obtained a Charging Order to secure the debt. The Judgment debtor has made payments in accordance with the instalment order. Can I still apply for an application for an Order for Sale?
No, you cannot enforce the charging order if the judgment debtor is up to date with instalments.
Attachment of earnings
An attachment of earnings order (“AOE”) is a mean of enforcing a County Court Judgment. An application is made to court to request the Judgment debtor (“debtor”) deducts money directly from the debtor’s wages, The employer will then send the payment to the court who will remit the money to the Judgment creditor (“creditor”).
It can be the case that the debtor will not want their employer to know about the CCJ and this can result in full payment being received.
It is possible for the debtor to seek a suspension of the AOE if they do not want their employer to know by reaching an agreement with the creditor. If the debtor defaults on the agreement the creditor can ask for the AOE to be re-issued.
An AOE is not suitable if the debtor falls into one if the following categories:-
- Self employed
- A firm or company
- In the armed forces
- Merchant navy
What is happens once an application for an AOE has been made to the court?
A notice of the application will be served on the debtor together with a reply form. At this stage the debtor must either pay the judgment and inform the court of this or complete the reply form. The reply form will require the debtor to provide details of their employer and income and expenditure. They can at this stage request the order be suspended on the basis they will pay without the involvement of their employer.
What happens if the debtor does not respond?
The debtor will have 8 days to respond following service. If they do not respond the court may issue an order that the debtor produce a statement of means. This will need to be served personally on the debtor. If they still fail to respond the court will issue a further notice which again needs to be personally served calling them to pay the judgment in full or return the statement of means, or attend court to show good reason why they should not be imprisoned. The debtor can be imprisoned for up to 14 days and fined.
Can I use an AOE at the same time as other enforcement action?
Not usually. If you were to use a second method, permission of the court would be required.
What will be the amount of instalments the court will deduct from the debtors wages?
The court will look at the income and expenditure of the debtor and calculate the minimum amount that the debtor needs for ordinary living expenses, this is known as the protected earnings rate. The court will order instalments over the protected earnings rate, If the debtors earnings fall below the protected earnings rate then the court will not make any order for instalments to be paid.
Will we need to attend a hearing for an AOE order to be made?
No, the application and order is dealt with on paper.
The judgment I have has been ordered to be paid by instalments. Can I still apply for an AOE?
Yes, but only once the debtor is one instalment behind.
How will I know if the debtor already has other AOE’s against them?
A search of the Attachment of Earnings index can be made. There is no fee for this search.
Order to attend court for questioning
This is a valuable tool to assist with enforcement of any debt owed. This method is suitable for both companies and individuals. An application is submitted to the court and the debtor or a representative of the company must attend court to be questioned. Failure to attend the appointment the debtor may receive a custodial sentence.