When you bring a claim and win – options for enforcing a High Court judgment in England and Wales07 Feb, 2019 - Dispute resolution | by Grosvenor Law
In the first of a two-part series on enforcement of judgments, Ben Wolfe sets out the process in England and Wales.
Obtaining judgment in your favour is often not the end of civil litigation. The losing party will not always comply with the court’s judgment or order and not everyone realises that the court will not automatically seek to enforce it. To avoid being left out of pocket at the conclusion of proceedings, litigants should always consider at the outset how they may be able to enforce judgment against a defendant who is unwilling to pay.
Do your homework
When commencing litigation, a claimant’s objective is usually to recover sums lost. The key to successful enforcement is identifying and ascertaining the value of the defendant’s assets at the outset. For example, it is not unusual for fraudsters to live a lifestyle that suggests that they are cash rich when the reality is that they are living beyond their means, spending other people’s money or not paying their bills. An individual’s wealth may be tied up in trust structures. Even large companies do not always hold significant assets in their own names, instead, they may be owned by holding companies which are often outside the jurisdiction.
When dealing with an individual, you should consider:
– does the defendant own their own home?
– are they a shareholder in a private company?
– what debts may they have?
If the defendant is a private company, you will want to know:
– is the business a UK business or is it incorporated abroad;
– is the company solvent and are recent accounts publicly available?
– who are the shareholders and directors and where do they live?
You have your judgment – now what?
In English law, in addition to commencing a process in which the threat of bankruptcy or insolvency is raised unless payment is made, a claimant who has obtained a money judgment against a defendant who is resident or incorporated within the jurisdiction has broadly five options. It should be noted that these can only be obtained after making an application to court.
These options consist of:
1) a writ of control;
2) a third-party debt order;
3) a charging order;
4) an attachment of earnings order; or
5) the appointment of a receiver.
Writ of control
After obtaining judgment, the successful party may instruct an authorised enforcement agent to enter the judgment debtor’s premises, seize goods (including vehicles, art and jewellery) up to the value of the judgment sum and sell them in order to satisfy the debt in whole or in part. This method of enforcement is useful and effective, particularly where the sum in question is relatively modest or where the debtor is known to have valuable moveable assets.
Third-party debt order
Such orders require third parties (i.e. someone other than the judgment debtor) to pay the creditor either some, or all, of the debt owed by the judgment debtor. For example, an order may be sought against the debtor’s bank requiring it to transfer sums held in the debtor’s bank account. If the debtor itself is owed money by a third party i.e. in satisfaction of a commercial contract between the debtor and that third party, then such an order would enable the judgment creditor to step in and receive the money before it is paid to the judgment debtor. This method of enforcement is particularly effective where you have a debtor who has the cash to pay but simply refuses.
This allows judgment creditors to secure their debt against the debtor’s land or securities. Ultimately, the creditor may obtain an order for sale of the debtor’s property in satisfaction of the judgment debt. This method of enforcement is an extremely useful tool because real property is usually an individual or company’s most valuable asset, which they are often unwilling to sell voluntarily.
Attachment of earnings
This is an order that the debtor’s employer transfers to the judgment creditor an amount from their regular salary until the judgment is satisfied. This method of enforcement is only available from the County Court so may not be appropriate for all cases.
Appoint a receiver
Appointing a receiver is an option where the judgment debtor’s affairs are particularly complex. However, professional receivers need to be paid for their work and their appointment will take some level of control away from the creditor.
The methods of enforcement outlined above can be used on their own or together in order to satisfy all or part of a judgment debt where the judgment debtor is in England and Wales. Often the threat of the successful party applying for one or more of these enforcement methods can be as effective as the enforcement itself. However, successful parties in litigation need to be aware that judgment is not always the end of the story. Faced with a judgment debtor who is unwilling to pay, the successful party needs to maintain their resolve, ensure they have funds available to apply for enforcement, and only relent when as much as possible of the judgment debt has been satisfied. The key is to know which method or methods are likely to yield results in different circumstances.
Ben Wolfe is a managing associate specialising in commercial litigation, often involving high profile clients and with a foreign element.