The Government is committed to improving access to, and the efficiency of, civil justice as it is crucial that creditors who have established a legitimate claim should be able to pursue it through a straightforward and accessible system, and if necessary enforce a judgment by the most appropriate means.1 Equally, debtors who genuinely do not have the means to pay should be protected from the oppressive pursuit of their debts.2
This Chapter describes the important role that enforcement plays in the criminal and civil justice systems and in a modern, democratic society which requires ways to enforce payments such as taxes.3 Without effective means of enforcement people ordered to pay a court judgment or criminal penalty would have little or no incentive to do so and the authority of the courts, the effectiveness of penalties, and confidence in the justice system would all be undermined.
The scope and progress of the Review and some of its achievements to date are then set out, including the recent introduction of unified rules for charging orders, third party debt orders, orders to provide information and the new National Standards for Enforcement Agents.
The Civil Enforcement Review has carefully considered the existing mechanisms and legislative processes for enforcement - much of which are archaic. It effectively draws to an end now with the comprehensive package of proposals for enforcement agents, data disclosure orders and other court-based enforcement methods that are set out in the following Chapters. These will put in place a system that is better equipped to deliver effective enforcement now and to adapt in the future. Civil justice and its enforcement processes have to continue to evolve and be responsive to other changes, for example the ongoing work in respect of personal insolvency, ideas arising from the criminal justice reforms presently before Parliament, and from Europe. The new mechanisms we propose, after careful consideration and consultation, will more readily take on board new initiatives than the structures they replace.
This Chapter sets out detailed proposals, and explains the need for, an adequate regulatory mechanism, unified law and fairer fee structure for all enforcement agents to enable straightforward effective warrant enforcement and protect vulnerable debtors who genuinely cannot pay.4 It explains that in the Government's view there may always be a need for the power to take legal control of goods in order to enforce a debt but that this should only be permitted within a regulated structure and with appropriate safeguards.
There are detailed proposals on how, with a broadened role, the Security Industry Authority (SIA) could licence all enforcement agents who take legal control of goods, undertake committal/arrest or seek limited access to information through a partial data disclosure order.5 The important role that professional associations and training providers will play in assisting the SIA to raise standards across the sector is identified along with an explanation of how a complaints system could operate and the need for uniformity across public and private sectors where appropriate. The findings of a consultancy project on these issues are set out.
This Chapter picks up on the central message from this and previous Reviews - access to better information is the key to effective enforcement. More information is needed to facilitate better choice and targeting of enforcement methods. Detailed and carefully argued proposals show how this can be achieved, since the Data Disclosure Order (DDO), being an order of the court, places a clear legal obligation on the parties to disclose information. It is noted that the Office of the Information Commissioner has been consulted, and recognising that the proposed procedures seek to strike an appropriate balance between the legitimate interests of creditors and proper respect for the privacy rights of individuals, has confirmed they see no reason why the process should lead to contraventions of the Data Protection Act.
This Chapter comprehensively explores improvements to court-based enforcement methods that do not involve taking legal control of goods. It notes that the procedure of debt recovery through deductions from earnings could be vastly improved by tracking debtors and that the use of fixed deduction rates could halve the processing time. The proposals would be beneficial for debtors, creditors and employers. The next section proposes changes to charging orders and shows how the interests of debtors and creditors would be safeguarded. The compelling reasons for not changing third party debt orders are set out.
1 For definition of the term "creditor" see Annex 3 - Glossary
2 For definition of the term "debtor" see Annex 3 - Glossary
3 For definition of the term "enforcement" see Annex 3 - Glossary
4 For definition of the terms "enforcement agent" and "warrant" see Annex 3 - Glossary
5 For definition of the term "data disclosure order" see Annex 3 - Glossary