Glossary

Address for enforcement

This is the address where the Enforcement Agent will attend to enforce the writ. The Debtor must be served a Notice of Enforcement, giving 7 clear days’ notice prior to enforcement at that address.

Abortive fee

The abortive fee was the charge made to the Creditor if enforcement proved unsuccessful. It has now been replaced by the Compliance fee.

Attachment of Earnings Order

Once you have a County Court Judgment (CCJ) against an individual Debtor, you can ask the court to order their employer to deduct money from their salary. This is paid to the court, which then pays you. If the employer refuses, they can be fined. The court reviews the Debtor’s income and expenditure and determines the instalment value. If the Debtor changes employer, you need to make another application.

Bankruptcy

This is for use against an individual Debtor for undisputed debts over £750. You don’t need to get a judgment first; you can simply send a statutory demand giving them 21 days in which to pay in full. If they don’t pay, you then issue a bankruptcy petition (you have four months from the statutory demand in which to do this). If the Debtor is made bankrupt, their house may be sold to pay the debts.

Certificated bailiffs

This is a bailiff who has been granted a certificate by a judge to levy distraint. They now come under the umbrella term ‘Enforcement Agent’. The certificate lasts for two years and cannot be granted to anyone employed in a business that buys debt or any officer of a county court.

Charging order

Again to be used against an individual Debtor, this allows you to apply to the court for an order so that, should their property be sold, you will be paid the debt plus interests and costs if and when the property is sold. All joint owners and other secured Creditors, including the mortgage lender, must be served with the application for the order. A charging order can also be made against shares.

Compliance fee (when a case is abortive)

The Compliance fee is only charged to Creditors if enforcement proves unsuccessful. The Compliance fee is triggered each time a Notice of Enforcement is sent to the Debtor. The current fee is £75 plus VAT. The most common reasons enforcement is unsuccessful are: a) the Debtor has absconded and cannot be traced; b) the Debtor is subject to insolvency proceedings; c) the Debtor has no assets of value to remove and sell.

Control – writ of

The writ of control is the High Court version of a warrant of execution in the County Court. It empowers an HCEO to take control of (seize) goods belonging to a judgment Debtor in order that the judgment debt is settled, either by way of payment or sale.

Controlled goods agreement

When leaving seized goods at the Debtor’s premises, the HCEO provides a controlled goods agreement. This states that he has taken control of the goods and that the goods will remain in his custody until the debt and all costs have been paid. The Debtor may not sell or remove the goods, nor may he let anyone else do so. The controlled goods agreement also obtains the Debtor’s permission to re-enter at any time and as often as they need to inspect the goods and remove them. The agreement allows the HCEO to re-enter by force if necessary.

County Court Bailiffs

County Court bailiffs are civil servants employed by the court. They use a warrant of execution to enforce CCJs valued up to £5,000. The warrant costs £100 (and there is no abortive fee).

County Court Judgment (CCJ)

If you have an outstanding sum owed to you and have chased the debt unsuccessfully, you should write a Letter Before Action to the Debtor, advising them that, unless you receive full payment within 14 days, you will commence court action to recover the debt.

You may either use a solicitor to obtain your CCJ or you can use the Government’s self-service called Money Claim Online. If the Debtor still does not pay, you may proceed to enforcement. CCJs can be enforced for 6 years from the date they are awarded.

Debtors in liquidation or administration

You can check with Companies House to find out if a company is in Liquidation or Administration with an “L” or and “A” next to the name.

Delivery – writ of

The writ of delivery is most commonly used by companies to recover specific goods that have not been fully paid for and the Debtor is in arrears, for example finance companies. The writ of delivery is appropriate where the Claimant wants to recover the goods, rather than receive payment for them. However, it can be combined with a money order under a writ of control if necessary.

Employment tribunal award enforcement

With the Fast Track scheme, employment tribunal awards can be easily transferred to the High Court for enforcement. You need to download and complete the Form N471 and send it with the award and £60 court fee (recoverable from the former employer) to your HCEO, who will then obtain the writ on your behalf and commence enforcement. There is no minimal value to the award for High Court Enforcement and there is no Compliance fee. However, there is a fee for bringing a case to the employment tribunal.

Enforcement agent

An Enforcement Agent (EA) is the person who will attend the Debtor’s premises to enforce the writ of control. They must undergo a process of training and certification. In the case of High Court enforcement, the EA will act under the direction and authority of the authorised HCEO.

Exempt addresses

The HCEO may not levy execution at royal residences and diplomatic premises. However, it is worth checking the property details thoroughly. For example; many palaces are not deemed “royal residences”. Some other premises may be of such a nature that care and attention will be necessary when the officer attends to fulfil their duties; for example, funeral directors, care homes or hospitals.

Fieri facias/fi fa – writ of

This is the previous name for a writ of control.

Gaining entry by force

Commercial premises: the HCEO can force entry to commercial premises to levy on a first visit or any subsequent visit to remove goods providing the property is not physically attached to, and form any part of, a residential dwelling.

Residential premises: the HCEO may climb a perimeter wall or fence. They can enter the premises through an unlocked door or normal means of access (but not a window). Once inside, they may break down inner doors to seek the Debtor’s goods. The Enforcement Agent may not be forcibly ejected, but if they are, they can then force re-entry. They may force entry to a garage, out house, stables or barn providing it is not physically attached to, and form any part of, the residence.

Insolvent Debtors

The Insolvency Service allows you to check individuals and “trading as” names for bankruptcy and IVA.

Interpleader – claims by third parties

This can occur if, after the Creditor obtained a judgment and the appropriate writ, a third party then claims ownership of the money or goods that have been or will be seized. If the Creditor disputes the third party’s claim, an interpleader summons will be issued for all the parties to attend the High Court so that rightful ownership can be determined by a Master.

Judgment debtor deceased

If a judgment and writ of control were awarded before the debtor’s death, then they are valid and execution may take place, normally through the seizure and sale of goods held by the executor on behalf of the estate. If more money is raised than is required to satisfy the judgment debt, interest, court fees and execution costs, then the balance is returned to the deceased’s estate. If the Creditor wishes to issue proceedings against a Debtor who is already deceased, the court’s prior permission is required before a warrant of execution or writ of control can be issued.

Money held by HCEO after enforcement

When the execution of a writ of control is successful and paid by the Debtor, the HCEO will have either been paid or will have seized and sold goods. The HCEO retains the money recovered “in suspense”, i.e. neither belonging to the Creditor or Debtor, for 14 days before payment is made to the Creditor in case a winding up order or bankruptcy petition is issued against the Creditor during those 14 days. If this happens, the money is returned, minus the HCEO enforcement fees, to the Liquidator/Official Receiver to pay all Creditors. After the 14 day period with no winding up order or bankruptcy petition, the money is paid to the judgment Creditor.

Notice of enforcement

Enforcement Agents are required to give the judgment Debtor 7 clear days’ Notice of Enforcement before they visit. This does not include Sundays or bank holidays. This is called the Compliance Stage, the first stage of enforcement. There is a fee of £75 per Notice sent, which will be recovered from the Debtor if enforcement is successful.

Older people and the vulnerable

Enforcement agencies must ensure that the genuinely vulnerable and socially excluded are protected. The potentially vulnerable include: elderly, people with a disability, the seriously ill, the recently bereaved, single parent families, pregnant women, unemployed people, those who have obvious difficulty with English and children. Enforcement Agents must withdraw from domestic premises if the only person present is, or appears to be, under the age of 18 or a person who is vulnerable, although they can ask when the Debtor will be home. If the child appears to be less than 12, the Enforcement Agent must withdraw without making any enquiries.

Partnerships

Partnerships (apart from limited liability partnerships) are not a legal entity, rather a collection of individuals trading together. As such, the partners are liable for the debt of the business and this liability is not limited. When enforcing against a partnership, the Creditor is best advised to obtain a judgment against the partnership and include the name/s of the individual partner/s within the command portion of the writ of control. This then gives the Creditor, via the HCEO, the option of enforcing against the partnership, the partners individually or both.

Payment by instalments

If the Creditor and Debtor reach an agreement on an instalment payment plan, then the goods remain seized under the controlled goods agreement until the debt and costs are paid in full. Once that happens, the ownership of the goods returns to the Debtor. If, however, the Debtor falls behind in the instalments, the Creditor can decide to have the goods covered by the controlled goods agreement removed under Enforcement Stage 2 and potentially sold under the Sale or Disposal Stage.

Possession – writ of

Commercial landlords may apply for a writ of possession to repossess land and property on that land. The landlord, or their solicitor, must attend the repossession to show the actual property or land that is being repossessed. The HCEO enforcing the writ is not obliged to warn the building’s occupants that they are about to be evicted, but it is good practice to do so to avoid problems and prepare any special measures or support that think they might need in order to execute the writ. The Enforcement Agent is entitled to use force to enter commercial premises and may also use reasonable force to eject the occupants and other people found on the premises at the time.

Priority of writs

It is very possible that more than one Creditor may be suing a Debtor at the same time. When Writs of control are issued, the HCEO will time them in, i.e. mark each writ with the date and time of receipt. If two separate HCEOs have writs with the same date, the priority will then be decided by the time it is signed by the HCEO.

Questions to get answers to before obtaining a judgment

Is the Debtor is still in business, or in the case of a sole trader, not bankrupt? Check with Companies House or the Insolvency Register.

  • Do they have assets? You can ask the Debtor to provide details of their business at court.
  • How old is the debt/judgment? You may enforce a judgment up to six years old. If you don’t have a judgment, you may still obtain one if the debt is no more than six years old.
  • Have you got all the details correct? Check the company/individual name. If it’s a “trading as”, put those details in too. Get the right address. Get the right amount – you can legitimately add interest at 8%, court fees and enforcement costs.

Taking control of goods and sale of goods

It is the duty of the HCEO or Certificated Bailiff to take control of (seize) the goods of the Debtor in order to sell (normally at auction) and raise the money to clear the debt. If sold at auction, the auctioneer will always try to get the best price for the goods, selling to the highest bidder on the day. Although not common, the court may also allow for the goods seized to be sold privately rather than at public auction if it can be demonstrated that a higher price is likely to be obtained. This is called private treaty.

Sequestration – writ of

If the Debtor fails to comply with an order, the judgment Creditor may be entitled to a writ of sequestration to obtain payment. The original order requiring payment of the judgment debt must warn the Debtor that failure to pay the sum set out in the order may be enforced by writs of sequestration. The original order must be served personally and contain the penal notice.

Setting aside judgment

When the Debtor applies to set aside judgment (sometimes used as a delaying tactic), the court will fix a date for the hearing, which both parties will attend. The Debtor will have to explain why they want the judgment set aside. If the court does set aside judgment, then the Debtor is allowed to put forward their defence, having provided the Creditor with documents they intend to use and witnesses to support their defence. If they are successful, enforcement cannot proceed. If their application is denied, the Creditor may proceed with enforcement. Enforcement can continue whilst the application is awaiting a hearing.

Tools of the trade

Tools of the trade, i.e. tools and equipment essential to work or trade, are exempt from seizure to a maximum value of £1,350. However, these goods must be used solely by the Debtor for the purposes of his or her work. For example, a commercial van that is also used by the Debtor’s spouse is available for seizure. This exemption is only available to sole traders and cannot be claimed by partnerships or limited companies.

Third Party Debt Order

This is made against a third party holding money on behalf of the Debtor, for example their bank or a customer owing the Debtor money. You need to try to make sure there actually is some money in the bank account, otherwise this method will fail.

Third Party Ownership

If the HCEO seizes goods that do not belong to the Debtor or are under a hire purchase agreement, then the third party needs to provide evidence of this to reclaim them. This may end in interpleader proceedings at court where a master will decide ownership.

Third party premises

The HCEO cannot enter the premises of a third party, where the Debtor does not reside or carry on a trade or business, without permission from the court.

Tracing individuals and companies

It’s important to have all the correct details about the Debtor so that the judgment can be enforced. This may include actually locating the Debtor, either an individual, a sole trader or a company director. Good information to gather includes: name, last known address, telephone number, vehicle registration, date of birth. Date of birth is the most useful, as 90% of the records hold a precise date of birth.

Trading as

Don’t just sue ABC Services as it is difficult to enforce against this. Sue “John Smith T/A ABC Services” to cover all bases. Don’t forget that many limited companies also often trade as another name, so put both names in. If you are to sue a trading name, ensure that you put the words “A Firm” in brackets after the name. However, we would always recommend you name the individual (s) who run it as well.

Transfer of judgment to High Court

When a County Court Judgment (CCJ) is issued for £600 and above (including court costs), the Creditor can transfer it up to the High Court for enforcement by an HCEO. The transfer form is the N293A and there is a court fee of £60, which can be added to the debt. Once completed, a writ of control (formerly called a writ of fieri facias, or fi fa for short) is issued, which give the HCEO the authority to enforce.

“Unless” order

These are court orders specifying that a party to the proceedings must do a specific thing by a set date. If they do not, then the order stipulates what will happen next. If the party does not comply, then the next stage will happen automatically, without any further orders from the court. For example, the court may order the judgment Debtor to pay in installments; if they miss an installment, then the HCEO is authorised to enter and seize goods to cover the outstanding balance owed.

Validity of the writ

The writ of control will be valid for 12 months from the date of Notice of Enforcement, or, if the Debtor breaches a payment arrangement for 12 months from the date of the breach.

Voluntary arrangements – how they impact on enforcement

A company voluntary agreement is put in place to allow a company to continue trading while making an arrangement with its Creditors. The arrangement is proposed by the company to its Creditors and, once accepted by the appropriate majority, is binding on all Creditors. Normally, the Creditors will agree to accept a delay in payment, a smaller payment, or a combination of the two. Enforcement of writs of execution is normally suspended during a company voluntary arrangement.

Walking possession agreement

The previous name for a controlled goods agreement.

Winding up

This is for use against a company for debts over £750. You don’t need a judgment first, but can go straight to a statutory demand. If payment isn’t received, the next step is a winding up petition, which must be advertised at least seven days before the hearing in the London Gazette. This usually leads to banks freezing bank accounts. If the petition is granted, a liquidator is appointed to realise and distribute assets amongst Creditors.

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