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Obtaining judgment against a party is normally the primary objective when issuing a claim. The type of judgment can vary however, where the judgment is likely to have any monetary element, a claimant should, at the outset consider
- how any judgment obtained will be enforced;
- does the defendant have assets against which judgment can be enforced where the defendant fails to pay voluntarily after the issue of a judgment?
- in which jurisdiction are the assets based?
There are various methods of enforcement available. Which method is most likely to see a financial return should be considered at the outset. It may be appropriate to use a couple of different methods of enforcement and regard should be given to in which order, or whether both enforcement options can be pursued simultaneously.
Where a claimant is unsure of a defendant’s assets, we regularly work with tracing agents who can help establish what assets a defendant has.
Taking control of goods
Taking control of a defendant’s goods is a popular method amongst claimants because it is usually a relatively quick and low-cost process. This method involves instructing High Court Enforcement Officers to obtain a writ of control (in the High Court) or instructing county court bailiffs to via a warrant of control (in the county court). The writ or warrant of control empowers the agent to take control of and sell a defendant’s goods in order to satisfy the value of the judgment.
A charging order involves securing the judgment against the defendant’s property. If the land or property is owned by the judgment debtor jointly with another (for example, the matrimonial home) the judgment will only be secured against the debtor’s interest in the property. A charging order will usually be registered at the Land Registry in order to restrict a defendant from disposing of their interest in the property without satisfying the debt.
This method requires a court application and where the court is satisfied that the requirements for a charging order have been made, the court will make the order in two stages:
- interim charging order;
- final charging order
Where a defendant does not oppose the application, the process is relatively quick. Where however a defendant or co-owner in the property opposes the application, the process will take longer.
Once a final charging order is obtained, it may be possible to apply for an order that the property be sold. Where an order to sale is not obtained, the charging order will remain secured against the property until the debt is paid.
Third party debt orders
This method of enforcement enforces a judgment against money held by a defendant’s bank or building society account and can be used where the Claimant is aware of a defendant’s bank account details. As with charging orders, this requires an application to the court and is a two stage process. The order is made in two stages:
- interim third party debt order (which freezes money held in the defendant’s bank account)
- final third party debt order
Upon receipt of the final order, the court will order the bank or building society pay the monies held in the account to the Claimant.
Read more about third party debt orders here.
Attachment of earnings order
If a defendant is employed, a claimant can apply for an Attachment of Earning Order. This involves an application to court which, where successful, orders the defendant’s employer to pay an amount of the defendant’s wages directly to the Claimant until the debt is satisfied.
Insolvency proceedings: bankruptcy and company liquidation
This method is available to claimants where the defendant is an individual (if the judgment is for £5,000 or more) or a company (if the judgment is for £750* or more).
*Please note that the Corporate Insolvency and Governance Act 2020 has introduced temporary measures on the presentation of winding up petitions against companies between 1 October 2021 and 31 March 2022. This means that there are certain conditions that a creditor will need to meet to present a petition against a company during this period. In summary, these are:
- There is a debt owed for a liquidated amount which has fallen due for payment which is not an excluded debt. Generally, excluded debts relate to rent arrears or other payments due under a commercial tenancy, such as service charges
- The debt owed is for a sum of £10,000 or more. This is an increase from the previous threshold of £750
- The creditor has sent a written notice to the debtor which contains each of the following statements:
(a) That the creditor requires the debtor to provide their proposals for payment of the debt
(b) That, if the debtor fails to make such proposals within 21 days, the creditor intends to petition to wind up the company
- The period of 21 days has passed since the notice was sent to the debtor and no response has been received.
The process involves submitting a petition to seek a bankruptcy order (for an individual) or a winding up order (for a company).
Once the bankruptcy order or winding up order has been made, the defendant’s assets will be held in trust for all creditors and realised by a trustee in bankruptcy or liquidator. They will deal with the defendant’s estate in accordance with their obligations set out in the Insolvency Act 1986 and the Insolvency Rules 2016. This process may not see a return to the claimant and therefore, careful consideration should be had as to the likely return this process would have for the claimant, given what is known about the defendant’s assets and their debts.
Conclusion – how we can help
We have collectively helped claimants successfully enforce judgments for over 75 years. We have collected tens of millions of pounds in for our clients. Let us help you today – whatever your debt size and wherever you are based.
“As credit and collection professionals ourselves, we have to be pretty discerning about the lawyers we retain so it speaks volumes that Francis Wilks & Jones have been our retained solicitors for many years now. Thoroughly professional, the firm has a wide knowledge and experience of the legalities of the debt recovery scene. Sound advice is always available and provides crucial support with some of the more difficult decisions that we have to make.”The Credit Protection Association