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Enforcement of Court Judgments and Orders

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The Three Paths of Justice

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 10))

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Abstract

This chapter examines the various ways in which civil judgments can be enforced. Money judgments can be enforced by: (i) seizure of goods; or (ii) a third party debt order (that is, a ‘garnishee order’); or (iii) a charging order (against land), stop order (against securities or funds in court), or a stop notice (against securities); or (iv) by appointment of a receiver. Breach of injunctions will render the party in default a ‘contemnor’ and the contempt of court procedure (known as ‘committal proceedings’) can then be applied. In appropriate circumstances, a contemnor might be condemned by a civil court to pay a fine or be imprisoned or to have assets seized by the court’s enforcement officers (‘sequestration’ of assets). There are also mechanisms allowing judgment creditors to gain access to information concerning the judgment debtor’s assets.

C. Sandbrook, Enforcement of a Judgment (11th edn, London: Sweet & Maxwell, 2011).

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Notes

  1. 1.

    Tribunals, Courts and Enforcement Act, sections 62 to 70, Schs 12 and 13.

  2. 2.

    Ibid., sections 95 to 105.

  3. 3.

    The following background materials are available at http://www.dca.gov.uk/legist/tribenforce.htm#b. ‘Effective Enforcement: improved methods of recovery for civil court debt and commercial rent and a single regulatory regime for warrant enforcement agents’, White Paper, LC Dept (Cm 5744, 2003); ‘A Choice of Paths: better options to manage over-indebtedness and multiple debt’ (Consultation Paper, DCA: CP23/04, 2004); ‘Relief for the Indebted: an Alternative to Bankruptcy’ (Consultation Paper:, Insolvency Service, 2005).

  4. 4.

    http://www.justice.gov.uk/news/press-release-290311a.htm

  5. 5.

    http://www.justice.gov.uk/news/press-release-290311a.htm

  6. 6.

    CPR 70.2(2).

  7. 7.

    RSC Ord 46 and 47 and CCR Ord 26, in Schs 1 and 2, CPR.

  8. 8.

    Tribunals, Courts and Enforcement Act, sections 62 to 70, Schs 12 and 13.

  9. 9.

    CPR Part 72.

  10. 10.

    CPR Part 73.

  11. 11.

    See RSC Orders 30 and 51, in Sch 1, CPR, which apply both in the High Court and county courts.

  12. 12.

    CCR Ord 27, in Sch 2, CPR.

  13. 13.

    County Courts Act 1984, s 112; such an order prevents named creditors from petitioning for bankruptcy against the judgment debtor, and makes provision for payment of creditors by instalments; the order can last for three years.

  14. 14.

    CCR Ord 26, r 16 in Sch 2, CPR.

  15. 15.

    RSC Ord 45, r 4 in Sch 1, CPR.

  16. 16.

    CCR Ord 26, r 17 in Sch 2, CPR; or by summary proceedings for the recovery of land against trespassers, CCR Ord 24 (see Sch 2, CPR) and CPR Part 55.

  17. 17.

    RSC Ord 45, r 3 in Sch 1, CPR.

  18. 18.

    RSC Ord 45 and 52; CCR Ord 25, 29 in Schs 1 and 2, CPR.

  19. 19.

    CPR Part 71; PD (71).

  20. 20.

    [2009] UKHL 43; [2009] 3 WLR 385; [2009] Bus LR 1269; [2009] 4 All ER 847; [2009] 2 Lloyd’s Rep 473; [2009] CP Rep 47.

  21. 21.

    Tribunals, Courts and Enforcement Act, ss 62 to 70, Schs 12 and 13.

  22. 22.

    CPR Part 72; PD (72); on jurisdictional aspects of this topic, T. Hartley, ‘Jurisdiction in Conflict of Laws: Disclosure, Third-Party Debt and Freezing Orders,’ Law Quarterly Review 126 (2010): 194, 206–9.

  23. 23.

    CPR 72.1(2): provided the bank or building society ‘lawfully accepts deposits in the United Kingdom’; banks and building societies can become subject to obligations to reveal details of all accounts which the judgment debtor holds with them: CPR 72.6; for money in court standing to the credit of the judgment debtor, CPR 72.10; on the threshold level of proof that a bank etc account exists, Alawiye v. Mahmood [2006] EWHC 277 (Ch); [2007] 1 WLR 79.

  24. 24.

    Huntingdon Life Sciences Group plc v. Stop Huntingdon Animal Cruelty [2005] EWHC 2233 (QB).

  25. 25.

    CPR 72.2(1)(a).

  26. 26.

    Alawiye v. Mahmood [2006] EWHC 277 (Ch); [2007] 1 WLR 79.

  27. 27.

    CPR 72.2(2).

  28. 28.

    Kuwait Oil Tanker Company SAK v. UBS AG [2003] UKHL 31; [2004] 1 AC 300 (third party debt-a bank account in defendant’s name—‘situated’ in Switzerland; English judgment debt; third party bank having branch in London); Société Eram Shipping Company Ltd v. Hong Kong and Shanghai Banking Corporation Ltd [2003] UKHL 30; [2004] 1 AC 260 (third party debt—also a bank account—‘situated’ in Hong Kong; French judgment debt, recognized in England; third party bank having branch in London); reasoning criticised by P. Rogerson [2003] Cambridge Law Journal 576.

  29. 29.

    As in the Kuwait case [2003] UKHL; [2004] 1 AC 300.

  30. 30.

    CPR 72.1(1).

  31. 31.

    CPR Part 73; PD (73); Charging Orders Act 1979.

  32. 32.

    Carnegie v. Giessen [2005] EWCA Civ 191; [2005] 1 WLR 2510, CA (English judgment payable in US dollars; valid charging order).

  33. 33.

    Charging Orders Act 1979, s 2(2)(a) to (c) respectively; CPR 73, Sections I to III; notable decisions on trusts, subrogation and restitution law in this context are Boscawen v. Bajwa [1996] 1 WLR 328, CA; Banque Financière de la Cité v. Parc (Battersea) Ltd [1999] 1 AC 221, HL; for the types of disposition prevented by stop orders, CPR 73.13 (funds in court) and 73.14 (securities); for the types of dealing prevented by stop notices, see CPR 73.18 (securities).

  34. 34.

    Charging Orders Act 1979, s 2(1)(b)(iii).

  35. 35.

    National Westminster Bank Ltd v. Stockman [1981] 1 WLR 67.

  36. 36.

    Charging Orders Act 1979, s 1(5).

  37. 37.

    Roberts Petroleum Ltd v. Bernard Kenny [1983] AC 192, HL.

  38. 38.

    On the effect of registration, Clark v. Chief Land Registrar [1994] Ch 370, CA.

  39. 39.

    RSC Ord 45 & 52; CCR Ord 25, 29: appended to CPR; Arlidge, Eady and Smith on Contempt (3rd edn, London, 2005).

  40. 40.

    Raja v. Van Hoogstraten [2004] EWCA Civ 968; [2004] 4 All ER 793; information disclosed (including in response to cross-examination) under a disclosure order ancillary to a freezing order can be used for contempt purposes, Dadourian Group International Inc v. Simms [2006] EWCA Civ 1745; [2007] 2 All ER 329.

  41. 41.

    Fore example, the implied undertaking applicable to information disclosed under compulsory disclosure powers, CPR 31.22; instances of contempt in that context are Miller v. Scorey [1996] 3 All ER 18 and Watkins v. AJ Wright (Electrical) Ltd [1996] 3 All ER 31; or the various undertakings imposed pursuant to freezing injunctions or search orders; for emphatic affirmation that breach of an undertaking is as serious as breach of an injunction, Cobra Golf Inc v. Rata [1998] Ch 109, 128, 163, per Rimer J, citing authority; on the court’s discretion to release a party from an undertaking, Di Placito v. Slater [2003] EWCA Civ 1863; [2004] 1 WLR 1605, at [27] ff.

  42. 42.

    Oxford University v. Webb [2006] EWHC 2490 (QB) Irwin J applying CPR 19.6, and considering, at [56] ff, M Michaels (Furriers) Limited v. Askew (CA, unreported, 23 June 1983) and other authorities.

  43. 43.

    Miller v. Scorey [1996] 3 All ER 18; Watkins v. AJ Wright (Electrical) Ltd [1996] 3 All ER 31 (both concerning breaches of the implied undertaking protecting information disclosed during discovery under CPR 31.22).

  44. 44.

    Heatons Transport (St Helens) Ltd v. Transport and General Workers Union [1973] AC 15, 109, HL; applied in Z Bank v. D1 [1974] 1 Lloyd’s Rep 656, Colman J; Director General of Fair Trading v. Pioneer Concrete Ltd [1995] 1 AC 456, 478, HL; in Bird v. Hadkinson The Times 4 March, 1999, Neuberger J refused to follow the test of deliberate breach adopted in Irtelli v. Squatriti [1993] QB 83, CA.

  45. 45.

    Motorola Credit Corporation v. Uzan (No 2) [2003] EWCA Civ 752; [2004] 1 WLR 113, at [148] to [156] (considered in Raja v. Van Hoogstraten [2004] EWCA Civ 968; [2004] 4 All ER 793); Isaacs v. Robertson [1985] AC 97, PC; Bhimji v. Chatwani [1991] 1 WLR 989; Wardle Fabrics Ltd v. Myristis (G) Ltd [1984] FSR 263.

  46. 46.

    Seaward v. Paterson [1897] 1 Ch 545; Elliott v. Klinger [1967] 1 WLR 1165; Z Ltd v. A-Z and AA-LL [1982] QB 558, CA (containing a good survey of the principles); Attorney-General v. Times Newspapers Ltd [1992] AC 191, HL; Att-Gen v. Punch Ltd [2002] UKHL 50; [2003] 1 AC 1046.

  47. 47.

    Re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC 456, HL; the question of corporate criminal liability was considered in Attorney-General’s Reference (No 2) of 1999 [2000] QB 796, CA, also noting: Meridian Global Funds Management Asia Ltd v. Securities Commission [1995] 2 AC 500; R v. British Steel plc [1995] 1 WLR 1356; R v. Associated Octel Ltd [1996] 1 WLR 1543; R v. Gateway Foodmarkets Ltd [1997] ICR 382.

  48. 48.

    Arlidge, Eady and Smith on Contempt (3rd edn, London: Sweet & Maxwell, 2005); RSC Ord 52, Sch 1, CPR; CCR Ord 29, Sch 2, CPR; on the need for due process to protect contemnors, Raja v. Van Hoogstraten [2004] EWCA Civ 968; [2004] 4 All ER 793, conclusion at [106]; Newman v. Modern Bookbinders Ltd [2000] 1 WLR 2559, CA; for discussion of the court’s willingness to commit a contemnor, despite technical procedural defects, see Bell v. Tuohy [2002] EWCA Civ 423; [2002] 3 All ER 975, CA, at [31] to [59], examining Nicholls v. Nicholls [1997] 1 WLR 314, 326, CA; and for problems of overlapping criminal and civil proceedings, Lomas v. Parle [2003] EWCA Civ 1804; [2004] 1 WLR 1642.

  49. 49.

    Z Bank v. D1 [1974] 1 Lloyd’s Rep 656, 660, Colman J.

  50. 50.

    JSC BTA Bank v. Solodchenko (No 2) [2010] EWHC 2843; [2011] 1 WLR 906, Proudman J.

  51. 51.

    Daltel Europe Ltd v. Makki [2006] EWCA Civ 94; [2006] 1 WLR 2704.

  52. 52.

    Dadourian Group International Inc v. Simms [2006] EWCA Civ 1745; [2007] 2 All ER 329; Lexi Holdings plc v. Shaid Luqman [2007] EWHC 1508 (Ch).

  53. 53.

    Harris v. Harris [2001] EWCA Civ 1645; [2002] Fam 253, CA, at [12] to [14], noting Contempt of Court Act 1981, s 14(1), restricting the period to a maximum of two years’ imprisonment; also noting the statutory duty to release a contemnor who has served half of a term of less than 12 months: Criminal Justice Act 1991, s 45(3); in Lexi Holdings plc v. Shaid Luqman [2007] EWHC 1508 (Ch), at [182] ff, a party was imprisoned for 18 months for failure to deliver up his passport and other documents, preserve evidence, disclose property assets and provide information regarding the location of funds and assets and, further, dealing with certain property and assets which fell within the ambit of the freezing order; for another instance of imprisonment, UK (Aid) Ltd v. Martin Mitchell [2007] EWHC 1940.

  54. 54.

    JSC BTA Bank v. Solodchenko (No 2) [2010] EWHC 2843; [2011] 1 WLR 906, at [16], per Proudman J.

  55. 55.

    Ibid., at [17], per Proudman J, citing authorities.

  56. 56.

    Raja v. Van Hoogstraten [2004] EWCA Civ 968; [2004] 4 All ER 793 at [71] ff; although the court has such jurisdiction against individuals who are contemnors, the order was procedurally defective on the facts, see [105].

  57. 57.

    Sch 1, CPR, at RSC Ord 45, rr 3 (1)(c), 4(2)(c), 5(1)(b)(i)(ii); RSC Ord 46, r 5; on the court’s inherent power, Webster v. Southwark London Borough Council [1983] QB 698.

  58. 58.

    Mir v. Mir [1992] Fam 79.

  59. 59.

    On sequestrators’ potential liability for negligence, IRC v. Hoogstraten [1985] QB 1077, CA; and see Raja v. Van Hoogstraten [2007] EWHC 1743 (Ch).

  60. 60.

    JSC BTA Bank v. Solodchenko (No 2) [2010] EWHC 2843; [2011] 1 WLR 906, per Proudman J: at [18] ‘I must take into account for sentencing purposes the factors considered by Lawrence Collins J in Crystal Mew v. Metterick [2006] EWHC 3087 (Ch), at [13]. In brief: whether the claimant is prejudiced by virtue of the contempt and whether the prejudice is capable of remedy; the extent to which the contemnor has acted under pressure; whether the breach of the order was deliberate or unintentional; the degree of culpability; whether the contemnor was placed in breach by reason of the conduct of others; whether the contemnor appreciated the seriousness of the breach; whether the contemnor has co-operated; a genuine offer following judgment but before sentence to co-operate in the provision of information is capable of being a serious mitigating factor.’ and [19]: ‘I would add to these factors the following: whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea; by analogy with sentencing in criminal cases, the earlier the admission is made the more credit the contemnor is entitled to be given; whether the contemnor has made a sincere apology for his contempt; the contemnor’s previous good character and antecedents; any personal mitigation advanced on his behalf.’

  61. 61.

    Bhimji v. Chatwani [1991] 1 WLR 989; good illustrations are X v. Y [1988] 2 All ER 648, 666 and Watkins v. AJ Wright (Electrical) Ltd [1996] 3 All ER 31; on the question when a litigant’s defiance in open court of a judicial or court order will justify imprisonment for contempt, Bell v. Tuohy [2002] EWCA Civ 423; [2002] 3 All ER 975, CA, at [60] to [66].

  62. 62.

    Re Barrell Enterprises [1973] 1 WLR 19, CA; RSC Ord 52, r 8, Sch 1, CPR.

  63. 63.

    The court’s flexibility is not without limit: Harris v. Harris [2001] EWCA Civ 1645; [2002] Fam 253, CA (court lacks power to permit release of contemnor from prison on condition that he does not commit fresh contempt).

  64. 64.

    Guildford BC v. Valler The Times 15 October 1993, CA.

  65. 65.

    For example, Adam Phones Ltd v. Gideon Goldschmidt (unreported, 9 July 1999) (innocent failure to comply with a court order for delivery up of materials).

  66. 66.

    Miller v. Scorey [1996] 3 All ER 18; Watkins v. AJ Wright (Electrical) Ltd [1996] 3 All ER 31.

  67. 67.

    Raja v. Van Hoogstraten [2004] EWCA Civ 968; [2004] 4 All ER 793 at [81] to [83], [112]; and see the authorities (not all of which were cited in the Raja case), noted at Neil Andrews, English Civil Procedure (Oxford: Oxford University Press, 2003), 39.63.

  68. 68.

    Motorola Credit Corporation v. Uzan (No 2) [2003] EWCA Civ 752; [2004] 1 WLR 113, at [81] to [83]; Days Healthcare UK Ltd v. Pihsiang MM Co Ltd [2006] EWHC 1444 (Comm); [2007] CP Rep 1.

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  1. Clare College, Trinity Lane, CB2 1TL, Cambridge, UK

    Neil Andrews

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Andrews, N. (2012). Enforcement of Court Judgments and Orders. In: The Three Paths of Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 10. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2294-1_6

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