Enforcement of a small claim judgment

If your opponent does not pay you after you have obtained judgment you may want to consider the following.

Attend Court for Questioning  | Third Party Debt Order | Warrant of Execution  | Warrant of Delivery | Warrant of Control | Attachment of Earnings  | Charging Orders | Judgment Summons

Order That Debtor Attend Court for Questioning
This is where your opponent is told to come to court to provide the court with details of his or her income, capital and savings. You can then decide from this information whether they are able to repay the debt.

To apply for the Order you should obtain an "Application for Order That Debtor Attend Court for Questioning" Form N316 from the court. You will have to pay a court fee when you return the form to the court. You should use Form N316A if you wish to question an officer of a company, (director, company secretary etc.)

You will need to give details of the amount of money that remains unpaid under the judgment.

The court will draw up an Order for the debtor to attend for questioning, a Form N39. The form gives a time, date and place for the debtor to attend, it also states that questions must be answered under oath, also that failure to comply may result in imprisonment. The Order must be handed to the debtor in person, "personal service". For this you should use a third-party enforcement agent/process server, who can provide evidence that the Order was served - rather than trying to do it yourself. The enforcement agent will need to provide a sworn statement (affidavit) to the court as proof the Order was served and served correctly.

It is important the Order is served correctly; simply leaving the Order at an address or with another person known to the intended person is not enough.

The Order also notifies the debtor that they can still pay the debt in full to you, so they do not need to attend court. If the debt is paid you should notify the court immediately so the Order to attend court can be cancelled.

When your opponent attends court an officer of the court will question him or her.

You do not have to be present, but you can be if you wish. You can also request the court ask additional relevant questions on your behalf.

The court will take notes of what your opponent says and will send you details if you were not at court.

If your opponent refuses to answer any questions or produce documents you can apply to the court for an Order that he must do so. This is called a "Penal Notice", ask the court to attach it to the Order.

If your opponent still fails to obey the Order they will be in "Contempt of Court" and if the Order has a Penal Notice attached you can apply to the court to commit your opponent to prison for breach of the Order.

If your opponent does not attend court then the court has to fix a new date to give him or her the opportunity to attend. If your opponent asks that you pay their travel expenses for attending court you must pay these not less than 7 days before the Hearing. You must then file a Certificate at court to say either that your opponent has not requested any money or that you have paid it. This Certificate must be filed with the court 4 days before the Hearing.

 

Third Party Debt Order
If your opponent is owed money by a third party you can obtain an order that the third party pays that money direct to you to pay off the debt owed to you. To do this your debt must be at least £50 and the third party must be within England & Wales. If you are seeking money from a bank or building society account will need to know the name and head office address of the bank or building society. Knowing the actual bank account details, branch, account number and sort code are obviously helpful and should be included if known, if you do not have these specific details you can still apply for the Order.

To obtain the Order you will need to complete Form N349 and pay a court fee.

The court will grant you a temporary/interim order which you must serve on the third party. A hearing date will then be fixed when the third party can attend and make objections about the order, if they wish to. The Order effectively freezes the account concerned as money cannot be withdrawn from the account, this can frequently encourage the debtor to settle and pay immediately. Once the Order is made if money is mistakenly allowed to be withdrawn from the account - the third party becomes liable for the money withdrawn.

The bank or building society must also disclose any other accounts held by the debtor, this may uncover accounts and money you did not know existed, so can be very effective.

The Order cannot be made against any joint accounts, unless the debt is against all the account holders.

If the third party is a bank or building society etc, where your opponent holds an account payment of the debt must not leave less than £1 in their account.

 

Warrant of Execution
This is a request for the court enforcement agents (bailiffs) to enter your opponent's home or business premises to seize your opponent's personal belongings to sell and pay off the debt.

Enforcement agents cannot seize any of your opponent's essential living items such as bedding, clothing, pots and pans, furniture, household equipment, tools of a trade etc.

They cannot seize any goods on hire purchase or belonging to someone other than your opponent.

A Warrant of Execution should be used where the debt owed is between £50 - £5,000, (or £600 - £5,000 in Scotland). If the debt is over £5,000 it should be enforced in the high court, not the county court using Form N293A and you will have to pay a court fee.

You will need to give details of the amount unpaid. If the judgment was for your opponent to pay by instalments you must show the whole or part of the instalments is outstanding. You can then claim payment of the total sum outstanding as long as it is more than £50.

No court Hearing is necessary, the court enforcement agents will go to your opponent's address and can accept payment from your opponent or remove your opponent's goods. They may ask your opponent to sign an agreement that he or she will not remove or dispose of their goods until he or she has paid the debt they owe you.

A court enforcement agent cannot force his way into your opponent's home to seize goods. However, he can enter "peaceable" if the debtor allows him to enter or if they enter through an open door or window. Once an enforcement agent has entered a property legally they can return later and actually force their way into the property because they initially entered lawfully.

A court enforcement agent can force their way into a business address at any time; they do not require your permission to enter.

 
Warrant of Delivery
If your opponent has a particular item or goods belonging to you and you are seeking their return then this is the method of enforcement you should use. If the judgment or order says the goods are to be returned to you - you should apply by sending to the court a "Request for Warrant of Delivery of Goods" Form N324 together with payment of a court fee.

No court hearing is necessary; the court enforcement agent will contact your opponent to fix an appointment to remove the goods.

 
Warrant of Control
This is similar to the warrant of delivery but does not apply to specific goods. A creditor can apply for a Warrant of Control against a debtor if they have received judgment against the debtor and the debtor has not paid. The warrant is valid for 12 months, but a court can extend this. The order will be granted if the court ordered the debtor to pay their debt by installments and this has not happened. The following conditions should be met:

- all or part of an installment has not been paid.

- at least £50 is still owed.

- at least one monthly or four weekly installments are unpaid.

 

Attachment of Earnings Order (AEO)
You can use this method of enforcement as long as the debt is not less than £50. If your opponent is working you can apply for an Order that your opponent's Employer deduct a certain amount from your opponent's wages each week or month in order to pay the debt.

You can apply by sending to the court a "Request for Attachment of Earnings Order" Form N337 together with a court fee.

You must say how much of the debt remains unpaid, or if the whole or part of the instalment payments have not been made.

The court will send a Form N56 to your opponent; they must complete and return it to the court. If your opponent fails to provide sufficient financial information the court may decide that a hearing in front of a judge is required. A copy of the reply from the opponent will be sent to you. Failure to complete and return Form N56 or if false information is provided the court can order your opponent complete it properly or that they attend a court hearing. Failure to attend can mean a warrant for their arrest is issued or even imprisonment for up to 14 days for contempt of court.

If your opponent is employed and you know their employer's details another option is to obtain their earnings details direct from their employer.

If the court is satisfied that your opponent is not unemployed or self-employed an Attachment of Earnings Order will be granted.

Your opponent can apply to the court to reconsider the order and suspend it, this usually happens when your opponent offers to pay the debt by installments to you. If your opponent states they cannot afford to pay they have 14 days from the order to request a court hearing to have the order altered.

Your opponent is entitled to have part of their earnings protected against deductions, "the protected earnings rate" (PER). The court will decide how much this will be and also decide the amount to be deducted and how often. 

 
Charging Order
If your opponent owns property you can apply to the court to "Register a Charge" at the Land Registry against your opponent's property to show that you have an interest in the sale proceeds of the property. This forewarns any person intending to buy your opponent's property.
 
It is important to note that as a creditor you can apply for a Charging Order as soon as you obtain judgment against your opponent, this means you may be able to obtain a charging order even if your opponent is not late paying you what they owe. In this respect a charging order can be used to secure the debt owed to you.
 
If there are any other charges registered before you on the Land Register those charges will be paid first before your charge. For example, if there is a mortgage registered against your opponent's property that mortgage will be repaid first from the proceeds of sale.
 
Once you have registered a charge against your opponent's property then you can apply to the court to order that the property is sold so that your charge can be paid as soon as possible.
 
To apply for a charging order you must prepare a Statement of Truth or an Affidavit (see Case Examples) saying why your opponent has not paid the debt and that it is still owed and also say how much is owed. You should give the name and address of your opponent and any other people that your opponent owes money to (if you know this information).
 
You must give details of your opponent's property (i.e. the full address and who the owner is). For example, your opponent may be married and their partner may also own a share of the property, you must put the partner's details in the Affidavit / Statement also.
 
You should search the Land Registry to find out details of the owner(s) of the property you want to put a charge on and also details of any other charges that have already been registered. This will give you some idea of whether your opponent has any other creditors.
 
It is a good idea to attach a copy of the results of your Land Registry search to your affidavit / statement.
 
To apply for a search of the Register you should obtain a form from the Land Registry that deals with the district where the property is located. You then fill in the form with details of the property and the Land Registry will send you a copy of the part of the Register dealing with the property. You will have to pay a small court fee. See the National Searches telephone number under Small Claims Addresses and Telephone Numbers.
 
The court will grant you an Interim Charging Order, previously known as a "charging order nisi".
 
They will then fix a hearing date when you, your opponent and any other owners of the property and any other creditors of your opponent will have to come to court.
 
The court will send you the interim charging order and you must serve a copy of this together with a copy of your affidavit or statement on the opponent and any other owners of the property and other creditors.
 
The court will then decide at the hearing whether or not to make a Final Charging Order, previously known as  "charging order absolute", (this means making the order permanent).
 
If making the final charging order would give you an unfair advantage against your opponent's other creditors the court may decide not to make it permanent.
 
If you are successful in obtaining a charging order you can then apply for an "Order for Sale" of the property.
 
You should obtain a claim form from the court and complete this and send it back to the court with a supporting affidavit (sworn statement) or statement, stating the details of the charged property, the amount for which the charge was imposed and details of the balance outstanding.
 
You should explain who owns the property and any other charges registered against the property with names and addresses of the people or company who have registered the charge. You should also give an estimate of the sale price of the property.
 
The court will fix a hearing date and serve copies of your application and affidavit or statement on your opponent and any other owners of the property.
 
Your opponent can make various arguments against a final charging order, for example:
 
- there is a negative equity and therefore you will receive no money if the property is sold.
 
- other creditors who are not asking for a charging order.
 
- other existing creditors would be put at a disadvantage.
 
- other creditors have priority, so you would not receive all (or any) money.
 
- unfair as negative effect on children or other living with you.
 
- there are other ways to pay the debt.
 
Or the court can attach conditions, for example, if there are young children living at the property who might be made homeless. The court may attach a condition that the property is not sold until the youngest child reaches 18.
 
Your opponent can apply to have the final charging order set aside by applying to the court using Form N244, however once granted it is difficult to have a final order set aside.
 

If an order is made that the property is to be sold the net proceeds of sale (after deduction of sales costs) will have to be paid to the court.

 
Judgment Summons
If the debt relates to unpaid maintenance under a court order, unpaid tax, unpaid state pension premiums or unpaid social security contributions a Judgment Summons can be used.
 
You should obtain a "Request for Judgment Summons", Form N342 from the court to complete. You will then need to pay a court fee.
 
You will need to say how much of the debt remains unpaid or if any instalments payments are outstanding.
 
The court will fix a hearing date and send notice of the hearing date to you and your opponent. At the hearing the judge can either order your opponent to pay by instalments. Or if it can be shown that your opponent can, but won't pay the court can send your opponent to prison for up to six weeks.
 
If your opponent fails to attend court then the court can issue a warrant for his or her arrest.
 

Affidavit in Support

Small Claims Court

 

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