Enforcing a judgment of debt
Enforcing a judgment in debt cases
The method used to enforce a judgment will depend upon the amount owed and the circumstances of the debt.
We will advise you about the best route in your case, and support you to pursue your choice of enforcement.
The options available to enforce a judgment relating to a debt are listed below. Click to expand each item for more detail.
When choosing the most effective method of enforcement, you might consider:
The debtor’s financial situation
If the debtor is a company, whether they are still trading
If the debtor is an individual, whether they are working
The credit rating of the individual and the company
The debtor’s assets
The High Court Enforcement Officers costs are deducted directly from monies recovered. Even if no monies are recovered, you will still be liable for costs of instruction and attempted enforcement.
High Court Enforcement Officers are allowed to force entry into commercial premises, something bailiffs are not allowed to do.
The County Court Bailiff will attend the debtors property to seize goods which will then be sold at auction. However, they are not allowed to force entry to properties. There may also be a delay before they attend the property.
The Court fee of £55 is payable regardless of whether or not monies are recovered. If the Bailiff is successful, they will attempt to recover sufficient goods to cover their costs.
An arrangement for the debtor’s employer to deduct an amount set by the Court from the debtor's earnings on a regular basis, usually monthly. Deductions are usually sent directly to the Court, then subsequently to the creditor.
The amount recovered is determined by the court, taking into account the debtor's income and expenditure. The debtor must be left with a reasonable income to meet living expenses.
Sometimes a trace is required to confirm whether or not the debtor is currently employed. If the debtor moves to a new job, the order can be forwarded to their new employer.
This method of enforcement is not available if the debtor is self-employed or is a limited company.
The debt is secured against the debtor’s property. If the property is jointly owned, the charge will only be secured against the debtor's share of the property. The debt will only be discharged once the property has been sold.
Debts are discharged in order of priority. If the property is repossessed and sold by the mortgage lender, your charge will be cancelled.
A Charging Order is not available if the debtor is a limited company.
An application can be made to recover monies directly from the debtor’s bank account. If the account is in joint names, the Judgment debt can only be discharged from the debtor’s share of the funds.
If you do not have the debtor's bank details, we can apply for an order for the debtor to attend Court for questioning in order to obtain this information.
A statutory demand will be issued to discharge the debt. If no response is received within 21 days, bankruptcy proceedings can be issued. The debtor must owe at least £5,000 for bankruptcy to be an option.
If the debtor is made bankrupt their assets, such as property or cars, will be sold to discharge the debts. Their bank accounts will be frozen and they will be unable to apply for credit. A notification of the bankruptcy is advertised in the local newspaper, which is often a strong deterrant. The bankruptcy lasts for one year, but credit reference agencies will keep a record of the bankruptcy for up to 6 years.
A statutory demand will be issued to discharge the debt. If no response is received within 21 days, winding up proceedings can be issued. The debtor must owe at least £750 for winding up to be an option.
To petition for compulsory liquidation there is a £280 court fee and a £1,600 petition deposit. You will also need to pay to advertise the petition and court hearing in the Gazette. Which court you apply to depends on the amount of ‘paid-up share capital’ the business has – you can find this information on the Companies House register.
If the petition is successful, the court will issue a winding-up order and put a liquidator in charge of winding-up the company. The liquidator will take control of the business to manage the sale of assets and settling existing disputes. Where the liquidation has been brought about by a petition, rather than by the directors’ choice, the liquidator will act in the interest of the creditors. The business’s assets are used to pay its debts and any money leftover will be split among shareholders.
You may not recover all of the money you are owed. This will depend upon the value of the assets available and the amount owed in debts to other creditors.
Can I enforce a debt judgement during the COVID-19 pandemic?
The government has implemented temporary changes to insolvency procedures to support businesses affected by Coronavirus COVID-19.
Statutory Demands and Winding Up Petitions
Statutory demands served between 1st March and 30th September 2020 cannot be used as a basis for winding-up petitions. Statutory demands may still be served, but will have limited effect without the option of a winding-up petition.
A statutory demand isn’t the only method of presenting a winding up petition, and petitions may still be served with a different basis. However, for the petitions to be successful the court will need to be satisfied either that COVID-19 has not had a financial impact on the debtor, or that the company would have been unable to pay it’s debts regardless of the pandemic. The threshold for proving that COVID-19 has not impacted on the debtor is set very high, and so it will be very difficult to satisfy the court. If the petition is not successful, the claimant may be liable for the debtors costs, and so this is a risky route.
Given these restrictions on winding up petitions and the risk involved, we would currently suggest that creditors explore other options. If a winding up petition is the only option, we would suggest waiting until the restrictions are removed. Currently this would mean waiting until October, but it is important to remember that these measures have already been extended once.
Wrongful Trading Provisions
The wrongful trading provisions have been suspended, so that businesses can continue trading, paying staff and suppliers, and purchasing goods even when insolvency is likely. The aim is to avoid unnecessary insolvency during this time, so that struggling businesses will have the opportunity to recover once the current situation has passed.
Get in touch
Do you have a legal matter you'd like to discuss with us? Get in touch using the details below or use the form here and a member of our team will be in touch to discuss your enquiry.
Address: Spencer Shaw Solicitors Limited
Vancouver House, 111 Hagley Road, Edgbaston, Birmingham B16 8LB
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