Once you have successfully obtained your Judgment/Order, if the debtor has not paid the sum due within the relevant period of time, then thoughts will turn to the methods available to enforce the Judgment.
One method is to instruct a High Court Enforcement Officer. The High Court Enforcement Officer (commonly known as “Sheriffs” prior to 1st April 2004) are private sector and appointed by the Lord Chancellor. Accordingly the Enforcement Officer is responsible for all actions taken under any writ in his or her name and operates under the Courts Act 2003 and the High Court Enforcement Officers Regulations 2004.
An Enforcement Officer is commonly instructed where:
- a High Court Judgment is awarded and a Writ of Control is obtained;
- a County Court Judgment over £600 and unregulated is registered at the High Court and a Writ of Control is obtained (most Enforcement Officer firms will obtain the Writ of Control free of charge and will only charge for the applicable Court fee).
Before instructing an Enforcement Officer you must do your homework to establish whether it is worth enforcing the Judgment Order. It is essential that you gather as much information as you can about the debtor. The following are examples of factors to consider:
- What type of debtor are you enforcing against, are they a Company/Individual or Partnership?
- Do you have the correct address for the debtor?
- Do you know if the debtor owns any assets which can be seized and sold at auction?
- What is the cost of the enforcement as against the value of the debt?
- Have you checked the debtor is solvent?
Once the Writ of Control has been obtained and the Enforcement Officer is instructed then it is the duty of the Enforcement Officer to take control of the debtor’s goods. If the date of the Writ of Control is more than 6 years ago then an application to the Court will need to be made to extend the enforcement period.
The Enforcement Officer must only attend the address endorsed on the writ and remove goods at that address. If an alternative address is provided by a third party, then the Enforcement Officer may only attend the new address if they have written instructions to do so.
Changes have been made to the compliance stage of enforcing the Writ of Control. The Enforcement Officer must serve a Notice of Execution informing the debtor that a decision for enforcement action by taking control of goods has been made. There is a minimum period of notice which is 7 clear days, which excludes Sunday, Bank Holiday, Good Friday and Christmas Day. An application to Court can be made to reduce this notice period.
Once the notice period has expired then the Enforcement Officer can take steps to take control of the goods. The Taking Control of Goods Regulations Procedure 2013 allows the Enforcement Officer entry on any day of the week between the hours of 6am and 9pm (except where the premises are wholly residential). The Enforcement Officer will only be able to enter or re-enter by any door or any usual means of entry and cannot gain access to the property by an open window or skylight. If the premises are wholly commercial then forced entry may be made and if a Magistrates’ warrant is obtained then forced entry may be made on domestic premises.
It may be the case that the Enforcement Officer enters into a Controlled Goods Agreement (formerly known as a Walking Possession Agreement) which provides that goods are under the control of the Enforcement Officer but remain in the debtors possession for an agreed period of time, during which time the debtor quite often pays the sum due. The Agreement must be signed there and then by an authorised person, and not at a later date as so often happened in the past.
If the Enforcement Officer has successfully removed the goods to the value of the Judgment Order and associated enforcement costs, The Taking Control of Goods Regulations Procedure 2013 provides that there is a minimum period of 7 clear days from the date of removal before the goods can be sold and notice must be given to the debtor as to the date, time and place of sale. An application to the Court must be made if the sale of the goods is by any other method than public auction. The goods are then sold. If sufficient monies are received then they will be forwarded to you to satisfy the Judgment Order and the Enforcement Officer’s fees will be paid. If there are any surplus monies they will be forwarded to the debtor.
Hopefully the above general overview is informative. For further information, please contact Michelle Hearne in our Dispute Resolution team at our Brighton & Hove office on 01273 329797 or email firstname.lastname@example.org.