Our thanks to all who took part in our recent webinar on High Court enforcement for businesses, and also to our co-host Maria Koureas-Jones from Woodfines Solicitors.
Below are the answers to the enforcement-related questions asked during the webinar. We will bring you the answers to the pre-enforcement questions in a future article.
Have you ever had difficulty in obtaining a High Court writ of control?
No. Permission is not required from the court to transfer up a County Court judgment (CCJ) to the High Court for enforcement, so every transfer up request will result in a writ of control being issued.
How long do HCEOs chase a debt before deciding it is unsuccessful?
This will depend on the circumstances of each case. Our standard practice is to make three attendances, although we may make a further visit if new information comes to light. An example might be information that the debtor’s valuable car will be available on a particular day.
What rights do HCEOs have to inspect confidential documents?
The High Court Enforcement Officer (HCEO) and the enforcement agents acting under his authority are entitled to inspect all documents to establish ownership of assets and to substantiate claims made by the debtor.
Under clause 68 of Schedule 12 of the Tribunal, Courts & Enforcement Act (TCA) 2007, it is an offence to intentionally obstruct a person lawfully acting as an enforcement agent.
Can HCEOs enforce against debts under £600?
Currently HCEOs may only enforce judgments and orders for £600 and above. However, the £600 includes court fees, which will mean that some lower value judgments will reach the £600 threshold and be enforceable by an HCEO.
How can a HCEO identify which goods belong to the debtor?
The enforcement agent may only take control of goods belonging to the debtor. For example, if he is enforcing against a limited company at a residential address, then he may only take control of goods belonging to the company.
If a debtor claims that items do not belong to him, he will need to provide evidence that the goods are owned by someone else. If he cannot provide evidence, the enforcement agent may still take control of the goods and the debtor will be given 7 days to provide the necessary evidence.
Alternatively, the third party who claims ownership of the goods can make an application to court under CPR Part 85 rules (which replace what were formally known as the interpleader rules). The third party will need to provide evidence of ownership.
Once a CCJ has been awarded, is there a time frame for applying to transfer it up to the High Court for enforcement? Do you then have to enforce it within a set time?
A CCJ is valid for 6 years, so the application for transfer up can be made at any point in that time period. Beyond 6 years, court approval is required and a valid reason will have to be provided in order to persuade the judge to permit extending this. We would advise prompt action if payment is not made promptly after judgment.
Once the writ of control has been issued, it is valid for 12 months.
Who pays the cost of removal and storage of seized goods?
These costs will be added to the sum to be recovered from the debtor. The HCEO will look to remove sufficient assets to cover the cost of removal and storage, in addition to the debt, court fees, judgment interest and enforcement fees.
If the enforcement agent does not believe that there are assets of sufficient value to justify removal, but the client insists that removal takes place, we may ask the client to indemnify us against any costs arising from a shortfall in the sale proceeds against these costs.
Do creditors have to follow the proposed new debt protocol, effective from 1st October 2017, or can they follow existing protocol?
Currently creditors follow the general practice direction on pre-action conflict. Once the new debt protocol is in place, it will apply to businesses, sole traders and public bodies claiming payment of a debt from an individual. It will not apply to business-to-business debt, unless the debtor is a sole trader.
When obtaining a judgment, do I need to transfer it up to the High Court at the same time or can a HCEO do this after the judgment is obtained?
The transfer up takes place after the judgment has been awarded and after the time period for payment specified in the judgment has passed, normally 14 days.
What is an ACAS award?
An ACAS settlement is similar to an employment tribunal award, where an agreement was reached during an ACAS conciliation session. It can be enforced through the Fast Track scheme by an HCEO is the same way as an employment tribunal award.