I came across an article recently in the Law Society Gazette entitled ‘Roads to Recovery’ that caught my eye. It is worth a read for those who wish to understand some of the inherent risks of litigation from an enforcement point of view.
The enforcement process is generally the final stage of litigation. All litigants should be aware that a judgment for money, in itself, does not guarantee the successful party payment but rather should be considered a determination that payment is due.
Of course, you would hope that in an ideal world, litigation, which is often hard fought, will result in the defeated party accepting the outcome and simply make payment. Unfortunately, it is not always so straightforward.
For instance it is possible that if the principle sum is compounded by the costs of tenaciously contested litigation being added then it could be the case that the judgment sum is quite substantial indeed. It may be that, in these circumstances, the judgment debtor simply does not have enough liquid capital to make payment even if they wanted to.
Alternatively, litigation can provoke bitterness between the parties concerned which, shall we say, leaves the defeated party less inclined to make any payment. Whatever the reason, the non-payment of a judgment debt is an important part of the litigation process and is one that the Gazette article suggests is in need of reform. I am inclined to agree.
Interestingly, the point contained within that article which should carry most resonance for litigants is the commentary on Lord Justice Briggs’ civil courts review of 2016. He called the enforcement of civil judgments and orders ‘the Achilles heel of the civil courts’.
The problem is that there are a variety of different ways of enforcing judgments and orders but, regrettably, each is not without its faults. Combine this, the article says, with the loss of local courts and members of court staff and you suddenly have a system which can be cumbersome, slow and very frustrating for claimants seeking to recover amounts owed. After all, in a claim purely for money, is the whole point not to obtain payment? If that is right then the statistic that, on the small claims track, (which is where claims are allocated if they have a value of less than £10,000), only around 60% of successful claimants receive the full amount awarded suggests that the system is failing to deliver justice to a significant proportion of litigants.
For now, the best advice to any would-be-litigant is to consider from the outset whether, in the event of success, a judgment is likely to be enforceable. It would be sensible to consider the following questions:
- Is my opponent in employment and, if so, do I know who they are employed with?
- Do they own a property?
- Do they have any other goods or assets that can be recovered to offset against the debt?
- What is their financial situation like generally? Are they likely to be made bankrupt or, if a company, enter liquidation?
- Is a bank account for the opponent known against which a third party debt order can be secured?
These are very general and simplistic questions and are not intended to be an exhaustive list of what to consider, but they give an idea of what might be required when it comes to enforcing a judgment. In litigation nothing is ever guaranteed, so it is worth planning for success, as well as failure, before proceedings are issued.
It seems to me that with the continued demands placed upon the Money Claims Online process and the County Court Money Claims Centre, the number of monetary judgments is only likely to increase and so the enforcement procedure will need to keep up with the inevitable demands this will place upon it. I do, for what it’s worth, quite agree with Lord Justice Briggs’ comment that ‘a unified enforcement court’, not dissimilar to the County Court Money Claims Centre, might simplify and expedite the enforcement process which is, on the whole, what is needed.
I for one agree with the message of the Gazette article and hope that the enforcement process does receive the attention and reform it sorely needs so that everyone who exercises their right to seek civil justice can do so confident that justice shall be properly enforced.