Here at The Sheriffs Office, I am often asked by clients whether they can still use High Court enforcement via a writ of control if they already have a charging order against a debtor.
Once the judgment creditor has obtained a judgment, he can apply for a charging order against property or land fully or partly owned by the judgment debtor. The charging order means that the creditor 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.
The writ of control (previously called a writ of fieri facias or fi fa) instructs the High Court Enforcement Officer (HCEO) to seize goods and chattels, as opposed to the charging order which is against land, property and shares.
Applying for a writ of control after the charging order
A charging order can be a long term approach to debt recovery.
There is nothing to preclude the creditor from applying to transfer the judgment to the High Court for enforcement using a writ of control, and having a charging order in place at the same time. It may be that the debtor’s circumstances have changed and there are now assets available for seizure that may have not been available at the time of judgment and application for the charging order.
If the creditor does instruct an HCEO to apply for and enforce the writ of control, any debt recovered will reduce the amount owed under the charging order. If the entire debt, court fees, enforcement costs and interest are recovered, then the charging order will be discharged.
Applying for the charging order after the writ of control
It can also work the other way round. If the creditor applies for the writ of control first and the HCEO is unable to enforce, or only partially recovers the debt, then the creditor may subsequently apply for a charging order.
In most cases, unless there really are no assets to seize, the writ of control costs less than the charging order and is likely to result in a speedier debt recovery. But the two debt recovery options are not mutually exclusive.
David is the former CEO of The Sheriffs Office.