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Small Claims Court
Support.co.uk |
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YOUR CLAIM PROCESSED IN THE UK
SMALL CLAIMS COURT |
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When a
judgment is obtained it becomes a matter
of public record as a "County Court Judgment" or CCJ. The
Defendant is formally notified by the
Court as to how much they should pay and when it should be paid. In theory the
Defendant should should discharge the judgment within 7 days and if they do so
the record of the judgment is removed and there is no penalty on the credit
record of the Defendant. As far as the credit agencies are concerned the CCJ
should be discharged within 30 days for a clean record to be achieved.
Unfortunately, many Defendants simply ignore the CCJ and do not bother to pay
up. In this case the Claimant must look
at Enforcement options. The options available are:
- To instruct the
Court Bailiff to collect the outstanding money - a Warrant of
Execution.
- Apply for an Order to
Obtain Information.
- Apply for an
Attachment of Earnings Order.
- Take out a Charging
Order on the Defendant's property.
- Apply to the Court for
a Third party Debt Order.
- To make the
Defendant bankrupt or if a company to wind it up.
This is an instruction from
the Court for the Court Bailiffs to
collect the outstanding funds from the judgment. The bailiffs can visit the
Defendant and collect the outstanding funds or seize goods to the value of the
funds if required.
There are a number of rules which the Court
Bailiffs are constrained by:
- They can be
refused entry to the Defendant's premises.
- Essential items
for sustaining life cannot be removed (bed, cooking utensils etc).
- Essential
tradesman's tools cannot be removed.
- They cannot break
in to the Defendant's premises (unless the Claimant is the property
landlord).
Use of the Warrant of Execution is the
most used enforcement option and many Defendants will pay up immediately rather
than have persistent visits from the bailiff.
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| Order to Obtain Information |
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If the Claimant has reason
to believe that a Defendant who has failed to discharge a Court Order has
adequate assets to discharge same they can apply to the court for an order
compelling the Defendant to attend and provide information about their
financial assets. This option is not strictly an Enforcement option but does
provided the Claimant with adequate information for the selection of the most
appropriate option.
The process provides a number of controls in order
that the Court may properly ensure that both the Claimant and Defendant are
treated in a fair manner. The Defendant (called Judgment Debtor for this
procedure) is served with a notice requiring their attendance at court with all
or part of the following information:
- Details of income
including pay slips, pension income, investment income etc.
- Full details of
all bank accounts with original statements and pass books.
- A statement of
income/expenditure showing all income and outgoings.
- An asset
statement showing investments (stocks, shares, bank deposits, property
etc).
- Proof of Income
Support payments if applicable.
- Proof of rent
payments, Council Tax, utility payments and all other outgoings.
If the Judgment Debtor is a company
management accounts supported by audited accounts for two years must be
produced.
During the hearing information is provided by the Judgment
Debtor on oath to an officer of the court and the Claimant has the option to
submit relevant questions to the court officer in advance.
The
requirement for the Judgment Debtor to attend at the hearing is not negotiable
and the court can impose strict penalties including imprisonment for failure by
the Judgment Debtor to attend. It must be noted that the Judgment Debtor has
two opportunities to attend and the court may require the Claimant to provide
travel expenses to the Judgment Debtor if they claim to be impecunious.
If the Judgment Debtor is a company, a named officer of that company will
be required to attend on behalf of the company.
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| Attachment of Earnings Order |
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This is an order which is
forwarded to the Defendant's employer. It is a strict order which instructs the
employer to deduct an amount set by the court from the defendant's earnings.
This is carried out each pay day be it weekly or monthly. The deduction is
forwarded by the employer to the Central Attachment of Earnings Payment System
who are responsible for collecting such payments.
The court will take
into account the Defendant's financial status prior to granting such an order
and if the Defendant has very low earnings or is supporting a large family may
decline such an order.
This is a "Charge" over the
Defendant's property. It is registered with the Land Registry and the property
cannot be sold without the Charging Order being paid off ( much as with a
building society. S=Charging Orders can be complicated and it is best to use a
solicitor when placing one.
Two things should be remembered
- You can only
place a Charging Order on a property which is owned by the Defendant only - if
the property is jointly owned it cannot be done without the consent of the
joint owner.
- You may need to
wait for several years until the property is sold before you can collect your
money.
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| Third Party Debt Order (TPDO) |
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This was previously called
a Garnishee Order. Provided that the Claimant knows the banking details for the
Defendant they can apply for a TPDO to be placed over funds held by the
Defendant in their bank account. This effectively "freezes" the account until
the Claimant is paid. It is necessary to be aware of a number of important
things:
- There must be adequate funds in the
bank account otherwise the application will fail.
- The Claimant must attend court for the
TPDO hearing.
- The Order will only apply to the
account cited in the application - if the Defendant has other accounts these
will not be included.
The banks now have a standard format
when they respond to the court following an application for a TPDO and cannot
by law fail to respond.
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| Bankruptcy or Company Winding Up |
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This can be very effective
if the Defendant has cash -but is stubbornly refusing to pay. The problem is
that if the Defendant has no money the cost of this action will never be
recovered - along the the amount of the Judgment. However, if the Defendant has
money this can be a very good way of bringing them "to the table" and providing
a very serious ultimatum.
Prior to such an action it is best to obtain
as much information as possible about the Defendant such as the property owned,
if a company obtain the most recent accounts and an analysis of the Claimant's
own experience and dealings with the Defendant.
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