Make my day

Clint Eastwood as Harry Callahan in Sudden Impact and previously The Enforcer dared a robber, following a shoot out, to: 'Go ahead, make my day.' The enforcement provisions of the Civil Procedure Rules 1998 aim to bring similar pleasure to the successful litigant but they demand a slightly more prosaic approach than generally would have found favour with Dirty Harry.

While CPR parts 70 to 73 '“ together with those parts of the Supreme Court and County Court Rules which remain in place as to enforcement '“ must be read for the relevant, specific detail, there are general, basic principles of enforcement which apply equally to undefended claims as well as those that have been heavily fought. Here are a few pointers.

Know your debtor

Certainly their financial position. No point in throwing good money after bad, chasing assets that do not exist and ignoring those that do.

Individual judgment debtors may be ordered to provide information as to assets and means as can company directors for details of the company's finances. The information will be taken on oath. The judgment creditor may request a court officer to conduct the questioning, in which event the questions will be in the form appended to the practice direction to part 71. The creditor may ask for the hearing to be before a judge when the creditor or representative must attend and conduct the questioning. Applications are, unsurprisingly, rare. The sanction for breach of an order for questioning can be committal.

Act with appropriate speed

There is no point applying for third party debt orders (TPDO) once money has been paid out. An application for an interim TPDO will be made and any order served (on the third party) without notice to the judgment debtor. Accordingly, full details must be given in the application and especially '“ and this is where many applications fail '“ both why it is believed the third party is indebted to the judgment debtor and the source of that information. The order can only affect an account held in the sole name of the judgment debtor: joint accounts are only caught if the judgment is against all account holders.

While most applications are in relation to bank accounts, the type of asset against which an order can be made is wide but not without limit. The order bites at the date of service, and, it is suggested, does not impose an ongoing obligation '“ notwithstanding that the wording of the standard order may suggest otherwise '“ given the requirement on the bank to search and file a report within seven days. Therefore, service on the bank on the 29th when the account is overdrawn will not attach to money credited on the 30th.

The interim order only requires a sum not exceeding the amount in the order to be retained and no longer 'freezes' the whole account. The CPR allow a defendant to apply for a hardship payment.

Ensure a proportionate enforcement response

As to a charging order application, make sure that the enforcement response is proportionate '“ the court may choose not to secure a judgment of £500 particularly if the debtor has savings of £1,000 '“ as it calls for an exercise of discretion so there is no right to an order.

Most applications are in respect of residential property but are not limited to real property. Again the interim order is made without notice and so the applicant must get it right '“ the PD sets out the required information. If the debtor's description does not match the name in the proprietorship register, an explanation must be given and evidence filed that they are the same person. Details of all known creditors must be given '“ at least include those named in the charges register '“ but not to do so is common and the similar comments can be made in relation to those who may have an interest in the property.

When the interim order is considered, the court must have certificates of service on all interested parties and creditors showing service not less than 21 days before the hearing. Although many courts have set up their own procedures within the CPR, most will require the judgment creditor to serve the judgment debtor and all other interested parties/creditors; and no certificate will mean no order.

The interim order can be used to protect against disposition of the asset. The CPR provide different procedures for the various types of asset that can be charged. Charging orders can be enforced by an order for sale. This requires a further and separate application and the further exercise of discretion so one does not automatically follow the other.

Understand the procedural limitations

Enforcement procedures cannot act as miracle cures. No matter how profitable the debtor's business from which he draws a handsome income, if he is self employed you will not get an attachment of earnings order. If there are no assets or they are limited, then that places a practical limit on how successful enforcement can be.

If a debtor is living in rented accommodation on benefits, then the offer of £3.25 a week may be all that you can practically expect to receive.

Often obtaining judgment is the easy part; enforcing it is much more difficult.

The difficulties practitioners must avoid are failing to follow and meet procedural requirements and seeking orders that might require a perverse exercise of jurisdiction. So, before you shoot off an application to enforce, take steady aim.

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