The Lord Chancellor, Lord Irvine, announced on 25 March that he was initiating a comprehensive review of the enforcement of civil court judgments.
This document is the first in a series of consultation papers that the Lord Chancellor's Department will issue in the course of the review. This paper aims to open up the debate on how enforcement might be made more effective.
The paper invites comments by asking a series of questions about existing methods of enforcement and possible law and procedural reform. It will assist the Department to analyse the responses if you provide your response in the form of answers to the specific questions. The scope of the paper is wide. We recognise that it will take time to read and to respond to thoroughly. Not all the areas the paper examines will be relevant to you. You do not therefore have to answer all the questions in the paper.
Responses should be sent by Tuesday 1 September 1998 to:
David Harmer
Civil Justice Division
Lord Chancellor's Department
Room 3.22
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 0171-210 8556
Fax: 0171-210 0682
E-mail responses to this paper can be sent to: consult.response-lcdhq@btinternet.com
Paper copies of this consultation paper can be obtained from David Harmer at the above address (tel: 0171-210 8556).
The Government is unable to guarantee that it will take account of responses sent after the deadline.
The Department may wish to publish responses to this consultation document in due course. If you wish your response to be treated as confidential, please ask. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
The Lord Chancellor recognises that the impact of the civil justice reforms, scheduled to be implemented in April 1999, will be lessened if a significant proportion of successful claimants are unable to recover the money or possessions which the court has awarded to them. He is committed to finding ways of making civil justice work in the interests of those who have had their cases upheld.
The Lord Chancellor has therefore set out the following terms of reference of the review:
to examine the present methods available for enforcement of county court and High Court judgments; to assess their effectiveness, identify the reasons for any ineffectiveness; to identify what changes would be necessary to enhance the effectiveness of the current methods of enforcement; and to make costed recommendations.
to examine the information, advice and assistance currently available to creditors and debtors; to identify what changes would be necessary to enhance the effectiveness of the current methods of enforcement; and to make costed recommendations.
to review the powers of bailiffs (county court and private sector) to determine what changes to their powers would be needed to enhance the effective enforcement of civil court judgments and to increase uniformity; and to make costed recommendations.
to consider what amendment is needed for the successful implementation of section 13 of the Courts and Legal Services Act 1990; and to make costed recommendations.
to consider whether, and if so how, the present power to distrain for rent should be abolished (as recommended by the Law Commission); and to make costed recommendations.
to identify, in the light of the amended procedures and revised powers of bailiffs, the type of agent(s) or form of agency which should be responsible for carrying out those enforcement procedures; and to make costed recommendations.
to implement those recommendations accepted by the Lord Chancellor (including the production of a unified set of Rules of Court for enforcement).
to gather the necessary data to make comparisons between the current and revised methods of enforcement and to evaluate the effectiveness of the project.
The first stage of the review will examine the efficiency, effectiveness and accessibility of the enforcement methods available in the civil courts. The first phase of the review is expected to last just over two years (April 1998 to June 2000) and establish proposals for change. The first changes resulting from the review should come into effect in the courts in November 2001. Any changes implemented will be monitored so the effectiveness of the reforms can be evaluated.
As you will appreciate, the Department needs to know in detail in what ways a particular method has proved ineffective, in order to consider how to make it more effective. Through a series of structured questions, you are invited to comment on the present methods of enforcement, to identify specific problems you have encountered and suggest specific ways in which current procedures might be made more effective.
The paper examines in turn:
It also asks:
You are asked to comment on why you choose a particular method of enforcement, or why you choose not to use it, and what information you obtain before you use it. You are invited to give specific examples and statistics to illustrate your answers.
The paper does not examine insolvency proceedings, since these fall within the remit of the Department of Trade & Industry. It also does not examine administration orders; a separate paper will be issued on administration orders and section 13 of the Courts & Legal Services Act 1990
Civil servants and experts will consider the questions and the answers you have provided in more depth in order to come up with a series of recommendations for the Lord Chancellor to consider. Further consultation will then take place so that you can comment on the practicalities of any amendments proposed. Respondents to the consultation will be kept informed about the structure and progress of the review by means of a newsletter, which will also be available on the Department's Internet site.
The Department will consult, in a series of shorter, staggered, consultation papers, on the specific proposals that are developed. In the process, it will seek the views of third parties involved in enforcement, such as deposit-taking institutions, and representatives of employers, payroll managers, producers of computer payroll software, and other relevant Government Departments.
To obtain information about a debtor's finances, in order to decide whether enforcement is likely to be successful and, if so, which method to choose.
The creditor applies to the court for an oral examination of the debtor, enclosing the relevant fee.
The court will tell the debtor that the creditor has applied for him to be orally examined and the date he must attend court. The court tells the debtor in writing; the order is sent by first class post. Alternatively, the creditor can serve the order personally.
The examination is carried out by a Master, a District Judge or an officer of the court. The court does not use a standard questionnaire in a prescribed format. The questions asked may therefore vary from court to court. It is up to the examiner, and the creditor, if he attends, as to what questions to ask. The debtor must give information on oath. It is recorded by the examiner and authenticated by the debtor when he reads and signs the record of what he has said. It is up to the creditor to challenge any of the information given. The debtor is guilty of perjury if he has given false information and can be imprisoned or fined. However, courts rarely use this sanction.
If the debtor fails to attend the appointment, the court will order the debtor to attend another hearing. The order must be served personally on the debtor. In the county court, this is usually undertaken by the county court bailiff (no extra fee is charged). Service has to be effected not less than ten days prior to the date of the hearing. In the High Court, the creditor arranges separately for the debtor to be served with the document.
If the debtor fails to attend the second hearing or attends the hearing but refuses to be sworn or give evidence, the judge may order the debtor's committal to prison for a specific period. A warrant for the debtor's committal to prison will then be issued by the court.
We would like to hear about your experience of using the oral examination procedure and how it can be made more effective. Please answer the following questions, citing specific examples where possible.
Q1. Why do you choose to apply for an oral examination?
a) as your first step in deciding whether to issue enforcement proceedings
b) to help you choose which enforcement method to use
c) only after an enforcement method has proved unsuccessful
d) other (please specify)
Q2. Do you normally use the process to obtain information from individuals
or from company directors?
Q3. In your experience, is the procedure automatic, or do you have to chase the court to initiate the next stage in the proceedings?
Q4. Do you normally find that the process has to reach the committal stage
before the debtor can be examined?
a) where the debtor is not a company director
b) where the debtor is a company director
Q5. How would you describe the information you obtain? Is it helpful, full, accurate?
Q6. How soon do you use the information you have obtained?
Q7. How often have you obtained information from an oral examination only to discover later when acting on the information gained that the debtor has changed their circumstances, for example, changed a bank account?
Q8. Do you find that you receive different information from different courts? Has this proved unsatisfactory? If so, should a standard questionnaire be used?
Q9. Should the court dispense with the adjourned hearing, requiring personal
service of the initial order to attend a hearing, and warning the debtor
in the order that failure to attend could result in imprisonment? If so,
a) should the court or the creditor serve the order to attend?
b) to what extent should there be an alternative sanction to imprisonment/
a fine?
Q10. Should the oral examination procedure lead directly to the issue of a means of enforcement eg attachment of earnings/garnishee where the result of the examination indicates that might be appropriate?
Q11. Should every debtor be orally examined automatically, before any enforcement process is considered?
Q12. In what other ways could the oral examination procedure be improved?
Q13. If you choose not to apply for the oral examination of a debtor, why not?
To summon to court a debtor, against whom judgment has been given for failure to pay maintenance, Income Tax, National insurance contributions or state scheme pensions and who since judgment has failed to pay. The debtor must explain to the court why he has not paid, and if the court is satisfied that he has had the means to pay but has wilfully refused to do so, why he should not be sent to prison. The debtor must explain to the court how he proposes to pay.
The creditor applies to the court for a judgment summons, enclosing the relevant fee.
The court will tell the debtor that the creditor has asked that a judgment summons be issued against him and order him to attend court on a fixed date. The debtor must be served at least 14 days notice before the date of the hearing. The creditor can choose whether to serve the order himself or to ask the county court bailiff to serve the order.
If the debtor attends the hearing, the judge will make a new order for payment based on the debtor's circumstances. If the judge is satisfied that the debtor has or has had since judgment the means to pay, he may make a suspended committal order. If the debtor fails to pay in the terms of the new order, the creditor can ask the court to issue the committal order and arrest the debtor.
If the debtor fails to attend the hearing, the judge can make an order for payment, but more usually will adjourn the judgment summons to another day and order that the debtor attend under threat of imprisonment. The order to attend the adjourned hearing must be served on the debtor personally, unless an order is made for service by some other means.
If the debtor fails to attend the hearing, or attends but refuses to be sworn or give evidence, the judge may order the debtor's arrest and committal to prison for up to 14 days.
We would like to hear about your experiences of using the judgment summons procedure and your views about how it can be made more effective. Please answer the following questions, citing specific examples where possible.
Q14. Why do you choose to initiate the Judgment Summons procedure?
a) because you have found it effective with other debtors
b) because you have tried another method enforcement and it has proved unsuccessful
(please give examples)
c) other (please specify)
Q15. Do you normally find that the process has to reach the committal stage before the debtor attends court?
Q16. What common features, if any, are there to the type of debtor against which you issue judgment summonses to recover unpaid tax, National Insurance contributions or state scheme pensions?
Q17. Should the court dispense with the first hearing, require personal
service of the order to attend a hearing, and warn the debtor in the order
that failure to attend could result in imprisonment? If so,
a) should the court or the creditor serve the order to attend?
b) should there be an alternative sanction to imprisonment?
Q18. How else could this procedure be improved?
To secure payment of a debt via a court order telling an employer to make regular deductions from a debtor's salary until the debt is paid in full.
The creditor applies to the court for an attachment of earnings order (AEO), enclosing the relevant fee.
The court will tell the debtor that the creditor has applied for an AEO and ask the debtor to complete a form setting out income, expenditure and employment details. The court will make an order once it has the debtor's employment details, and can determine how much money the debtor requires to cover basic living expenses. It will decide how much of the debtor's earnings should be protected to pay these basic expenses and how much can be deducted to pay off the debt.
If the debtor makes an offer that is acceptable to the creditor, the court can make a suspended AEO, which can be brought into operation if the debtor fails to pay the creditor the amount offered.
If the creditor has supplied details of the debtor's employment, the court will write to the employer asking for details of the debtor's earnings. The district judge can make an order based solely on information provided by the employer.
If either the debtor or the employer fails to reply to the court within eight days, the county court bailiff will serve a further reply form on the debtor or employer. If either the debtor or employer fail to reply within eight days, the court will arrange a hearing. The county court bailiff will serve an order to attend the hearing. At the hearing, the judge may impose a fine of up to £250 or a prison sentence of 14 days. If either the debtor or the employer fail to attend the hearing, the judge will issue a committal warrant for their arrest.
If the debtor already has an AEO in force against him, the court will make a consolidated AEO, dividing the money proportionately between the judgment creditors.
Once the order is made, the order is administered by the Court Service through the Centralised Attachment of Earnings System (CAPS), which automatically monitors payments and sends out reminders to employers that they should explain to the court why reduced payments or no payments are being made.
Both the employer and the debtor have a statutory obligation to inform the court if the debtor leaves one job and moves to another.
AEOs can be used to collect maintenance payments and magistrates' courts fines as well as ordinary judgment debts. Where an application is made to collect unpaid maintenance, the court will always arrange a hearing. AEOs for unpaid maintenance and court fines take priority over AEOs for ordinary judgment debts. Deduction from Earnings Orders made by the Child Support Agency to collect unpaid child or spousal maintenance, and Community Charge and Council Tax Attachment of Earnings Orders made by local authorities to collect unpaid community charge or council tax, also take priority over AEOs for ordinary judgment debts.
We would like to hear about your experience of using the attachment of earnings procedure and how it can be made more effective. Please answer the following questions, citing specific examples where possible.
Q19. Why do you choose to apply for an AEO?
a) because you have the debtor's employment details
b) because you have found it effective with other debtors
c) because you have tried another method enforcement and it has proved unsuccessful
(please give examples)
d) other (please specify)
Q20. When you apply for an AEO, do you (always) provide the court with the debtor's employment details? If you do not, what is the result?
Q21. If an application has failed in the past, why? (please give
examples):
a) you did not provide the court with details of employment?
b) the debtor had moved away?
c) the debtor was unemployed, self-employed, a merchant seaman, or a member
of the Armed Forces?
d) the debtor did not earn enough money?
e) other?
Q22. In your experience, is the procedure automatic, or do you have to chase the court to initiate the next stage in the proceedings?
Q23. Does the debtor usually complete the initial reply form? If not, how far do you usually have to take the procedure before an order is made?
Q24. If you choose not to apply for an AEO, why not?
Q25. If you do not know the debtor's employment details, what steps do you take to find out about them, before applying for an AEO?
Q26. Should the court no longer make suspended AEOs but only ever proceed to a full AEO?
Q27. Should the court check regularly whether the debtor's circumstances have changed, ie asking the employer whether the debtor is earning more, or asking the debtor whether their outgoings have increased?
Q28. What gaps or loopholes are there in the definition of attachable earnings and employment/ self-employment that you consider should be closed?
Q29. To what extent do you consider the priority of attachment of earnings orders should be changed? Currently, AEOs for civil judgment debts end up at the bottom of the pile. Should debts owed to the State still take priority over civil debts?
To secure payment of a debt by freezing and seizing (attaching) money owed or payable by a third party (the garnishee) to the debtor. The third party is commonly a deposit-taking institution such as a bank or building society, but can also be an individual or a company.
The creditor applies to the court for a garnishee order by giving the court the relevant fee and a sworn statement (affidavit) setting out all the details of the garnishee and the history of the debt to date. No notice is given to the debtor at this stage.
The affidavit is considered by the judge without the attendance of either party. If the application is accepted, the court issues an garnishee order nisi. This is an interim order, ordering the garnishee to freeze the debtor's account, or not to pay the debtor any money, pending a hearing when the debtor can explain why the court should not make a final order that the frozen funds should be paid to the creditor. The order tells the creditor, debtor and garnishee when to attend court.
The court serves the garnishee order nisi on the creditor and the garnishee by first class post. The debtor is served a copy by post seven days later, to ensure that the debtor cannot move his money.
The hearing is held in private. The court will make the garnishee order nisi final (absolute), unless the debtor or garnishee can give good reason why the order should not be made e.g. no funds in the account, the debtor is overdrawn.
If the court makes the garnishee order absolute, the garnishee may take a fixed sum towards his expenses in processing the order. The garnishee must then pay the creditor the amount of the judgment and the costs of issuing the application, or whatever proportion of that he is able to pay. Deposit-taking institutions must leave sufficient funds in the debtor's account to allow it to remain open.
We would like to hear about your experiences of using the garnishee procedure and how it can be made more effective. Please answer the following questions, citing specific examples where possible.
Q30. Why do you choose to issue garnishee proceedings?
Q31. How do you obtain information about a debtor's bank account/ debts owed to the debtor? Do you issue oral examination proceedings first?
Q32. What difficulties do you encounter when applying for a garnishee?
Q33. Should the garnishee order nisi specify the date from which the garnishee should freeze the account?
Q34. Should garnishee orders be reapplied for a specified period? i.e. a bank would re- check accounts every day for a period specified in such an order.
Q35. Should a creditor be able to issue a garnishee against a joint account e.g. an account held in the name of a husband and wife?
Q36. Should a creditor be able to issue one garnishee application to cover two or more debts owed to him by the debtor, (currently you must issue separate applications for each case)?
To secure payment of a debt by placing a charge on to immovable property e.g. a house or flat, land or shares.
The creditor must apply to the court in the jurisdiction of which the house or land lies, or where the fund is lodged. The creditor may therefore have to apply in writing to the court where judgment was entered for the matter to be transferred. Where the creditor was awarded judgment in the High Court for less than £5,000, he should apply to a county court.
The creditor applies for a charging order nisi (an interim order) by giving the court the relevant fee and a sworn statement (affidavit) setting out the details of the judgment, including the outstanding debt, the property on which a charge is to be placed, and the names and addresses of any others known to have a vested interest in the property.
The affidavit is considered by the judge without the attendance of either party. If the application is accepted, the court makes a charging order nisi. This is an interim order, ordering a charge to be placed on the land or property, pending a court hearing when the debtor can explain why the charge should not be made permanent. The order tells the creditor, debtor and garnishee when to attend court.
The creditor then serves a copy of the order nisi and the affidavit on the debtor, other creditors named in the affidavit, and the Land Registry, if the charge is placed on a house or land, or the relevant financial institution, if the charge is placed on shares or a trust. The creditor must file at court an affidavit detailing how service was carried out.
At the hearing the judge either makes the charging order absolute, with or without modifications, or discharges it. The onus is on the debtor to show why the order should not be made.
The county court serves the charging order absolute by first class post on all those who received a charging order nisi. In High Court proceedings, the creditor serves the order.
The debtor may request that the order is discharged when the debt has been paid in full.
The creditor can ask the court to order the sale of the property on which the charge has been placed. There is no time limit within which a creditor must apply for an order for sale, nor is there a limit on the period during which interest may accrue on the debt.
The creditor must file an affidavit and pay a further fee. The court will consider the application for an order for sale at a hearing. The judge will take into account the circumstances of the debtor and his dependants. He will give whatever directions he considers appropriate as to the sale of the property.
Where a property is sold, any proceeds left after the payment of debts is passed on to the debtor, and the charging order is discharged.
We would like to hear about your experiences of using the charging order procedure and your views about how it can be made more effective. Please answer the following questions, citing specific examples where possible.
Q37. Why do you choose to apply for a charging order?
a) because you have found it effective with other debtors
b) because you have tried another method enforcement first and it has proved
unsuccessful (please give examples)
c) as a fall back whilst pursuing other methods of enforcement, such as
warrants of execution
d) other (please specify)
Q38. How do you obtain information about debtors' assets? Do you issue oral examination proceedings first?
Q39. What difficulties do you encounter when applying for a charging order?
Q40. In your experience, have you received payment in part or in full
as a result of issuing a charging order? If so, at what stage of the proceedings
have you received payment?
(a) when the charging order nisi is made
(b) when the charging order absolute is made, or
(c) when you apply for an order for sale?
Q41. Do you usually proceed to applying for an order for sale? If so, why does your application succeed or fail?
Q42. What difficulties do you encounter when applying for an order for sale?
Q43. Should a creditor be able to apply for a charge to be placed on other current financial assets and products to be charged, such as pension funds, life insurance policies, and subsequently apply for these assets to be liquidated or sold?
To secure payment of an outstanding debt by seizing the debtor's goods and selling them to pay off the debt and costs. In the county courts this is carried out by the county court bailiffs under a warrant of execution and in the High Court by the Sheriff's Officers under a writ of fieri facias.
In practice, goods are rarely removed and sold. More commonly, the debtor comes up with some money, or makes an arrangement to pay by instalments, although the threat of removal can remain throughout the payment period.
The creditor applies to a county court for a warrant of execution, or to the High Court for a writ of fieri facias, enclosing the relevant fee.
In the county courts, the debtor is sent a letter advising that the creditor has authorised the bailiffs to act. If this does not provoke payment, the bailiffs visit the premises with a view to taking money and/or levying on goods. In the High Court, the Sheriff's Officer does not usually send a letter prior to making a visit to the premises. The Sheriff's Officer can negotiate an instalment arrangement, with the agreement of the creditor, without further reference to the court, whereas a county court bailiff can accept an informal instalment arrangement lasting for only a short time and a more permanent arrangement requires the court's sanction.
In the county court the debtor may make an application for the warrant to be suspended. He is asked to give details of his financial circumstances and to make an offer of payment. The creditor is asked for his view. If the creditor agrees the suspension and the offer, an order is drawn in those terms. If the creditor agrees to the suspension but not to the offer, the proper officer makes a determination as to the rate of payment. If the creditor disagrees with the suspension, there is a hearing before the district judge. This process can take time.
The list of goods which are exempt from seizure is the same for bailiffs and Sheriff's Officers. Where goods are seized which the debtor claims should be exempt, or which a third party claims to own, the court may be called upon to decide whether the seizure is valid. This procedure is known as an interpleader.
Where goods are removed, sale usually proceeds by public auction. Government auctions are renowned for low prices and the costs of appraising and advertising and the auctioneer's commission can make it uneconomic to remove and sell goods of low value. Goods may be sold by private treaty only where the amount of the warrant or writ is £20 or less or where the court specifically allows it.
We would like to hear about your experiences of using warrants and writs and your views about how these can be made more effective. Please answer the following questions, citing specific examples where possible. <
Q44. Why did you choose to enforce by execution? What did you know about the debtor's assets before you issued a warrant or writ?
Q45. How successful have the bailiffs been in enforcing your judgment(s)? How could this be improved? (please give specific examples)
Q46. How successful have the Sheriff's Officers been in enforcing your judgment(s)? How could this be improved? (please give specific examples)
Q47. How long has it taken for you to find out the results of the bailiff's/ Sheriff's Officer's actions? Are you satisfied with this?
Q48. Should there be a right to force entry to residential premises? If so, what safeguards should be put in place?
Q49. Should the list of goods exempt from seizure be changed? If so, how?
Q50. Would you like to see more sales by private treaty?
Q51. Should creditors be encouraged to state an acceptable instalment figure on issue (without disclosure to debtor) so that a decision on any application to suspend can be arrived at more quickly?
Q52. Should the court be able to make decisions about suspension according to fixed formulae without reference to the creditor?
Q53. Do you have experience of an interpleader? How do you think the procedure could be improved?
The judgment creditor in an action for the return of goods may issue a warrant or writ of delivery, seeking either the return of specific goods or the return of goods or their value, depending on the form of judgment. The bailiffs and Sheriff's Officers follow similar procedures to those for warrants of execution and writs of fieri facias.
Q54. How successful have the bailiffs been in enforcing your judgment(s) for delivery of goods?
Q55. How successful have the Sheriff's Officers been in enforcing your judgment(s) for delivery of goods?
Q56. How could the procedures relating to delivery of goods be improved?
Judgments and orders for the possession of land may be enforced by a warrant or writ of possession. In cases involving eviction from buildings, the bailiff or Sheriff's officer will make an appointment with the creditor, so that the building can be secured after eviction. In cases other than those involving squatters, the occupants are notified of the eviction date; this allows those who intend to leave peacefully before the eviction an opportunity to do so and allows time for those who wish to make an application to the court for suspension of the warrant.
Q57. How could this procedure could be improved?
Please note that this review will not be considering the circumstances in which warrants of possession are suspended by the court. Such matters will be considered in a separate exercise looking at housing cases.
Flowing from this review will be a unified set of enforcement rules for the High Court and county courts, to continue the task of unifying the Supreme Court and County Court Rules, the first tranche of which will be introduced in April 1999.
Q58. To what extent should there be equal access to all methods of enforcement, irrespective of whether judgment has been given in the county court or the High Court, in default or in the small claims track, Fast Track, and Multi-Track?
Q59. To what extent should all judgments be subject to the same registration provisions?
Q60. To what extent should all judgments be subject to the same interest provisions?
The Government recognises that increasing the efficiency and effectiveness of the available enforcement methods is not the whole answer. Many creditors find their choice of enforcement limited due to the circumstances of the debtor.
For example, where the debtor is self-employed, rents his business premises and leases his van or lorry, the creditor's choices are limited. He cannot issue attachment of earnings proceedings against the debtor because he is self-employed. He cannot apply for a charge to be placed on the business premises because it is rented. If he issues a warrant of execution, the bailiff cannot levy on tools of the trade or on the van. The creditor may issue garnishee proceedings if he knows the debtor's bank account details, but success depends on funds being in the account on the date the garnishee order is served.
The Government welcomes views not only on how existing methods of enforcement can be updated to reflect economic and technological developments, but also whether these developments allow the introduction of new methods.
Questions 10, 27, 28, 29, 35, 36, 43, 48, 49 and 50 are about closing gaps in current methods of enforcement. In addition:
Q61. What other gaps/ loopholes have you identified and how can they be
closed?
a) with reference to individual debtors?
b) with reference to debtor companies or businesses?
Q62. To what extent should the Government consider introducing legislation so that where a debtor has a bank account, the court can order a direct debit facility to be established to secure payment of the debt?
Q63. Where a creditor or debtor does not have a bank account, should the State provide facilities to make and receive payments?
Q64. To what extent should the court be able to process payment of the debt from a debit card?
Q65. To what extent should the court be able to process a payment by credit card (where there is sufficient credit)?
Q66. Do you think the creditor should be given the option of accepting payment by some means other than money, such as payment in kind, community service? If so, what, how should it be quantified, and who should quantify it?
Q67. What other methods of enforcement should the Government consider?
Q68. Should two or more creditors be able to issue an application for an enforcement method together, sharing the costs of issue and the money recovered proportionately?
Sanctions are primarily designed as a deterrent to encourage people to comply with a court order. Sanctions are used to punish parties in contempt of court, for example, for not attending hearings.
Sanctions are currently used against debtors who fail to attend hearings arranged in oral examination and judgment summons procedures and against debtors and employers failing to attend attachment of earnings hearings.
Your comments are invited on the following:
1. Earlier use of sanctions in oral examinations and judgment summonses
The current procedures for securing the oral examination of a debtor or a judgment summons, involve arranging a second hearing if the debtor does not attend the first hearing. The debtor is served personally with the order to attend the second hearing. The order warns him that he faces imprisonment if he does not attend.
Please answer Q9 and/or Q17.
2. Penalties for failing to comply with a court order
Q69. What scope is there/ should there be for imposing a penalty for failure to contact the court or creditor to explain why he is not paying a judgment debt?
Q70. What form should this penalty take?
Q71. Should the sanction be applied automatically after a prescribed period? If so, after how long a period?
3. Registration of judgments
At present, creditors can search the Register of County Court Judgments to find out whether a an individual or company has a county court judgment registered against them. The information obtainable is limited to the defendant's name, the court at which the order was made, the amount of the judgment. The creditor cannot find out who the plaintiff was or the timescale in which the debt was paid.
The Government is considering establishing a Register of High Court Judgments in a similar form.
Q72. Should creditors have access from the Register of County Court Judgments to plaintiff details and the timescale in which the debtor paid the debt?
Q73. For how long should a debt remain registered?
Q74. Should a debt be removed from the Register once paid, rather than simply marked ‘satisfied' as now if not paid within one month of judgment?
4. Perjury
A debtor who gives the court false information about his income and expenses commits an offence akin to perjury. However, very few prosecutions for perjury are brought.
Q75. Please provide details if you have had occasion to believe that the debtor has provided false information and have made attempts to prosecute the debtor for perjury.
Q76. What action do you consider the court should take? How should this action be initiated?
One of the fundamental principles of the Civil Justice Reforms developed from Lord Woolf's recommendations is that responsibility for the control of litigation will move from the litigants to the court. For pre-judgment processes this means the court will set a timetable for the case and will set limits on the work required to be done to bring a case to a full hearing. This will be done on the basis of proportionality; procedures and costs should be kept in proportion to what is at stake. At present it is entirely a matter for the creditor whether they enforce a judgment and, if so, by what method or methods, and court staff are not permitted to give advice. Whether and how Lord Woolf's principles should be applied to enforcement is something we will consider in the light of responses to this consultation.
With increased computerisation, it should be possible to set up systems so that the next steps of each method of enforcement follow on from one another, without the creditor having to chase progress. This already happens with attachment of earnings applications.
Q77. How much of the decision as to the most appropriate method of enforcement should rest with the creditor and how much with the court?
Q78. Should the court have a role in limiting enforcement procedures?
Q79. To what extent should a debtor be protected from enforcement? Are
the current safeguards (such as protected earnings in the attachment of
earnings procedure) sufficient?
a) should there be a protected income limit which applies to all instalment
orders?
b) should there be a protected asset limit (list of goods exempt from seizure,
list of financial assets exempt from enforcement)?
Q80. Should the use of enforcement be limited by its cost? Should there be a lower limit below which a judgment is deemed uneconomic to enforce?
Q81. Should a judge automatically ask questions about how the defendant intends to pay after he has given judgment?
Please also see Qs 10 and 11.
Q82. What other changes, not covered in this paper, would you like to see introduced, which you consider would be likely to make the enforcement of civil court judgments easier and more effective?