Debt Recovery - Enforcement of Judgments
When it comes to the enforcement of a judgment, some debt collection agencies and debt recovery solicitors are more than happy to instruct either County Court or High Court bailiffs automatically. While sometimes that may be the best course of action, a different method of enforcement may be more suitable and that can be gauged only by considering each judgment and debtor individually.
Unlike many of our competitors, we at Burnetts do deal with each judgment and debtor individually. That permits us to advise our clients on the best means of enforcement, which in turn allows the client the best possible chance of recovery.
When the judgment is received from the court, our first step is to contact the client to discuss the matter in detail. It may be that the instruction of County Court or High Court bailiffs is the best way to proceed. However, that is dependent upon the information available about the debtor’s circumstances. If, for example, a debtor who owes £2,000.00 - £3,000.00, is working whilst living in rented accommodation and does not own a car, it is highly likely in such circumstances that instructing County Court or High Court bailiffs would be inappropriate. In such a case, it might well be more appropriate to make an application to the local County Court for an attachment of earnings order in respect of the debtor’s wages.
In addition to the various forms of enforcement, we are able to offer associated services such as tracing agents, who not only trace a debtor’s whereabouts, but can also ascertain whether the debtor is in employment. We have direct access to Companies House to ascertain details of limited companies and their directors, direct access to the Land Registry to ascertain whether the debtor owns the property, in which he/she resides, and also access to various bankruptcy and insolvency databases. We find that, by making sure that as much information as possible is available about the debtor, we are able to offer more tailored and detailed advice as to the best way to try to enforce a judgment.
Bailiffs (Warrant of Control or High Court Writ of Control)
For judgment debts under £600.00 the only option for bailiff enforcement is to request a warrant of execution in the County Court. That is a relatively simple process, which we can deal with on your behalf. The court fee and solicitors’ allowable fixed costs are added to the judgment debt and the bailiff is instructed to visit the debtor to attempt to recover the debt.
For debts over £600.00 we would always advise that the case be transferred to the High Court, where a High Court writ of fi fa is obtained. That allows us to instruct High Court Enforcement officers (HCEO) and we have a successful relationship with a firm of HCEOs who will pursue the debtor on your behalf. If the HCEOs are successful in recovering the debt, they also recover their fees, interest, allowable fixed and the court fee paid on the transfer from the County Court to High Court. If the HCEOs are unable to recover their fees, they charge you a modest abortive fee, which, in most cases, is £75.00 + VAT.
If you know that the debtor owns a property and it that has been confirmed by the Land Registry, then an application can be made for a charging order. Once that has been obtained, it is possible to apply for an order for sale. The court has discretion whether to make an order for sale and it may be reluctant to do so, if the debtor is residing at the property, particularly if he/she is also offering to pay by instalments.
However, provided there is sufficient equity in the property, a charging order will – much like a mortgage – secure the Judgment debt, interest on a debt in excess of £5,000.00, the court and Land Registry fees paid and fixed costs. In the event of a disposal of the property, the charging order should have to be discharged in full, before the transaction can be completed. Therefore, while a charging order may not result in the immediate payment of the debt, in many cases it will ensure payment of the debt at a future date.
At Burnetts we will apply for a charging order (if no court appearance is necessary, which generally is the case) for the fixed costs figure allowed by the court of £110.00. Therefore, if you are later successful in recovering the monies owed to you, the sum recovered should include everything but the VAT on the £110.00. Judicial studies revealed that there were 165,000 Charging Order applications made throughout England and Wales in 2008, of which 135,702 resulted in orders being made.
Attachment of Earnings
Attachment is an option, if the debtor is in employment and is paying tax under the PAYE system. We simply make an application to the County Court for an attachment of
earnings order, which compels the debtor’s employer to make deductions from the debtor’s earnings at source.
Attachment of earnings orders are still among the most popular methods of court-based enforcement. In fact, judicial statistics for the year ending 2008 confirmed that there were 74,000 applications made during 2008 throughout England and Wales, of which 60,588 resulted in orders being made.
If the debtor’s employment status is unknown, we are able through our tracing agents to offer a status search on the debtor.
Third Party Debt Order
A third party debt order is a means of obtaining payment of your debt by getting someone else who owes money to the debtor to pay to you direct. It will appropriate only in a small number of cases. For an order to be successful, detailed knowledge of the debtor’s financial circumstances or business transactions will be required, as an order will be effective, only if it can be shown that money is due and owing immediately by the third party to the debtor.
Order to Attend for Questioning
This procedure was formerly known as Oral Examination. The debtor is ordered to attend court to answer questions on oath about his/her financial circumstances and to produce relevant financial records.
An application for such an order can be made against an individual debtor, a partner in a firm, or a director or the secretary of a limited company.
Occasionally this can be a useful weapon in the creditor’s armoury, but it is far preferable to obtain at the outset of the business relationship as much information as possible about the debtor.
To make an individual bankrupt or to wind up a company can be expensive. If the debtor – an individual or a company – has no assets, insolvency proceedings can be a fruitless exercise. However, the threat of winding up proceedings in itself can be an effective way of procuring payment from a debtor company, and the same applies to the threat of bankruptcy against an individual debtor.
While obtaining a judgment does not guarantee that the debt will be paid in full, at Burnetts we will look at every matter individually and we offer all of our clients a tailored solution in respect of each and every debt they may have.
When it comes to enforcement, one size does not fit all.
For further information on debt recovery, contact Rob Winder on 01228 552222.
About the author
Senior Associate Rob leads the Debt and Property Recovery team and is head of the Penrith office.