Obtaining Judgment means that you have the right to recover money or property and to use the court’s enforcement powers if the Defendant does not comply with the order.
A Judgment can be appealed and applications can be made to set aside or vary a Judgment even after a Judgment has been entered. These options are not covered in this brief blog and we would recommend you obtain advice if a Judgment has been wrongly obtained against you, or if you have received notice of appeal or an application notice after Judgment has been obtained. In all cases where you wish to set aside, vary or appeal a Judgment or order acting quickly is essential.
Where a Judgment is obtained for more than £5,000 if the court order does not deal with future interest then the court rate of 8% per annum will usually apply and will be recoverable. This can be extremely useful and over time will obviously increase the value of the Judgment debt significantly.
Where a Judgment Debtor ignores the Judgment and does not make payment to you, you should then consider enforcement options. You have six years from the date of the judgment to enforce it- meaning to force the debtor to pay if they have simply ignored it.
The best enforcement option will vary depending on the situation and you may want to obtain advice to help you at this stage if you haven’t already done so. It is important to keep in mind that others may also be owed money and it may therefore be a race to any assets. Taking steps in a timely and proactive manner is therefore likely to be very important.
These can be amongst the most effective way to recover monies. A without notice application is made to the court which secures the Judgment debt against an asset, usually a property or shares in a company, owned by the Judgment Debtor. If you obtain a Charging Order then you should then register it against the legal title of the property at the Land Registry. Your charging order will then be recorded in a similar way to a mortgage debt.
With the benefit of security you will be entitled to be paid following the sale of the asset provided there is sufficient equity. This type of application, where successful, will therefore move a Judgment Creditor from being an unsecured creditor to a secured creditor. Where a Judgment is secured against a property but remains unpaid it can even be possible to force the sale of the property. In the meantime interest will continue to accrue.
Bailiffs or High Court Enforcement Officers (HCEO’s)
County Court Bailiffs will not generally remove goods. However their attendance at a debtor’s property can be tactically useful and is obviously distressing. It may encourage a payment plan or even payment in full.
HCEO’s are self-employed high court bailiffs. They are far more effective in removing goods and items for sale via auction. They are also far more expensive. We have seen an increase in enquiries regarding HCEO’s as a result of greater television exposure (such as ‘The Bailiffs Are Coming’ and ‘Can’t pay, we’ll take it away’). The reality does not quite match the drama created for television in that HCEO’s are expensive and are entitled to be paid first from any items they recover.
The general principle remains that it is not possible to recover monies where there are none (including assets). HCEO’s are therefore unlikely to be a viable option unless there are significant known assets such as equipment, plant, machinery, vehicles or items known to have commercial value and located at specific known locations.
Third Party Debt Order
This is a fairly rare application made to the court to recover monies from a third party who owes the Judgment Creditor money or a bank account, where such an account is known.
The problem with this type of application is that usually the debtor’s debtors or the debtor’s account details will not be known or may be out of date. A bank is also entitled to deduct any monies they are owed first.
Examination of Judgment Debtor
This is an application that forces the Judgment Debtor to attend court to answer specific questions and to provide details of their assets and income as well as to detail their expenditure. If you are uncertain of the assets owned by a debtor this can be a useful way to obtain more information before deciding your next step.
A further enforcement option is to consider pursuing the insolvency of the debtor- bankruptcy in the case of an individual or winding up of a company. It is very hard for a debtor to avoid insolvency where the court has already decided that they owe the money and there remains significant stigma to insolvency and the financial repercussions can obviously be disastrous.
Ensure you have the benefit of a final Judgment before considering the best enforcement option;
Review all available information of the debtor’s assets, income and expenditure to ensure you select the most appropriate route to enforce the Judgment.
9 June 2016
Alex Cook is a Director at Helix. Alex initially trained academically as an unregistered barrister and was a Partner and Head of Civil Litigation at a large firm based in the South East before joining Helix Law. As well as focussing on expanding Helix, Alex specialises in commercial and property related litigation and he has acted for a broad range of clients including offshore property investment funds, small businesses and individual property owners.
Helix work with our clients to understand their business and the challenges faced. From partnership disputes to unpaid invoices to problem employees we have it covered. We work to help reduce the risk to your business when challenges inevitably arise. It’s why at Helix you’ll hear us say that we enjoy working together, with you. It’s what we’re all about.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.