Marlin/Phoenix CCJ on HSBC OD debt now want SD - Charging Order objection - ***WON***

[tendogs]

Hi Molly, was just going to post an "I'm sorry" on your thread, anyway, I'm sorry. There is always the non-contingent variable of the judge. I'll have a look and get back to you tomorrow.

[molly13]

hi tendogs,

Thanks for that.

Life goes on though.

Molly

[questioning]

Hi Molly,

That was the main problem as I said earlier in your thread, the fact that you had admitted the debt when you had the claim issued against you.

 

Another poster is trying for a set aside today, he too admitted the claim but his reason for admitting is because at the time he was given very bad advice from the CCCS. Again I feel he won't be successful because he admitted it, but you never know.

Should know the result tonight.

 

At least you tried Molly,

cheers Q.x.

Edited April 8, 2009 by questioning

[molly13]

hi questioning,

 

Yes I'm glad I tried though I still find the Judges comments quite unbelievable!!!

It seems the DCA does not have to have an Agreement, the small matter of not having been served with a Default Notice, and 3 different NoA and a 4th different date on the PoC is og no consequence either.

I was not disputing the debt,nor trying to get out of it,just trying to get the judge to see that the DCA had not compied with the rules...

I will complain to OFT about the DCA and see if they take more notice .

Molly:)

[questioning]

hi questioning,

 

Yes I'm glad I tried though I still find the Judges comments quite unbelievable!!!

It seems the DCA does not have to have an Agreement, the small matter of not having been served with a Default Notice, and 3 different NoA and a 4th different date on the PoC is og no consequence either.

I was not disputing the debt,nor trying to get out of it,just trying to get the judge to see that the DCA had not compied with the rules...

I will complain to OFT about the DCA and see if they take more notice .

Molly:)

 

Hi Molly,

Its not the case that the claimants don't need a CCA, they do, they know that too.

Its more the case that you admitted the debt.

Once the debt has been admitted you are on very dodgy ground, and have an extremely hard job to convince a judge otherwise.

Its a tough job to prove that the agreement wasn't in place at the time they made the claim.

You say you weren't disputing the debt nor trying to get out of it but the judge blatantly thought you were.

Had you defended the claim originally with a water tight defence, you could have shown the judge that the debt could not be enforced through the court with out the agreements, then, as you know it would have been a walk in the park compared to this.

Its your call but I wouldn't bother complaining to the OFT as they will take the same stance as the judge I feel. I wouldn't waste my time.

Far better to put your energy into other things.

[molly13]

Good afternoon,

 

I wonder if anybody are able to help me again, please?

 

Last August we had a Judgment against us for an overdraft. Being ignorant to the rules at the time we stupidly admitted part of the debt. However a variation was was obtained stating: Judgment is payable forthwith not to be enforced without permission,save by way of a charging order, whilst the defendants pay £1 per month to the claimant.

 

 

We have paid this as ordered, but now the claimant is going for the charging order - 8 months on.

 

Obviously we want to try and stop this.

 

We did request the Agreement under CCA but DCA informed us that they didn't have to supply this.

 

We also sent a CPR18 before the original Judgment, which they completely ignored.

 

We don't recall signing an agreement with the OC, there is definately no Default Notice (only a final demand, S.A.R. Original Creditor Oct.last year) and 3 different dates of notice of assignment. And we have asked for statements of account 4 times without any luck.

 

Can we use CPR 31.16 for disclosure of documents now?

What is the best way to go about stopping the Charging Order?

 

Any help much appreciated... again:)

Thanks in advance

Molly

[42man]

What you could possibly do is apply for the original set aside of the CCJ....do you know how much there might be in excessive charges on the account ?

[I've got no money]

I think that 42man is right the best option is probably to try and set aside the judgment

 

How much was the claim

 

Can you post a copy of the summons and your defence. Presumably the claim contained default charges - do you know how much they were

[molly13]

Hi and thanks for taking time to help with this.

 

1.There are no default charges. The account went over agreed o/d limit because the bank kept taking payments for a loan, knowing that no money were being paid in, and refused to stop the standing order and accept alternative ways of payment. When we complained they returned the charges and stopped further charges, but still took the payment for the loan and we exceeded the limit of £1500 by about £400, and the account was sold. We did not get a Default Notice or letter of termination.

The claim included interest, sol.fees and court fees, which we were adviced to dispute by CCCS. The claimant did not get these in the Judgment.

 

2. with regards to setting aside... we went that route wilth the Judgment for the loan last month and the application got dismissed. Same scnario regarding no Agreement, Default Notice, or termination. I posted another thread about this.. CONFUSED..Help please ..sorry but I don't know how to link it.

The Judge was of the opinion that he could not set aside an order on technicalities. Also he was not impressed that we waited 7 months to apply for set aside.. #40 on above thread.

So we don't feel that confident in getting it set aside, if we get the same judge.

 

Regards Molly

[I've got no money]

Hi and thanks for taking time to help with this.

 

1.There are no default charges. The account went over agreed o/d limit because the bank kept taking payments for a loan, knowing that no money were being paid in, and refused to stop the standing order and accept alternative ways of payment. When we complained they returned the charges and stopped further charges, but still took the payment for the loan and we exceeded the limit of £1500 by about £400, and the account was sold. We did not get a Default Notice or letter of termination.

The claim included interest, sol.fees and court fees, which we were adviced to dispute by CCCS. The claimant did not get these in the Judgment.

 

2. with regards to setting aside... we went that route wilth the Judgment for the loan last month and the application got dismissed. Same scnario regarding no Agreement, Default Notice, or termination. I posted another thread about this.. CONFUSED..Help please ..sorry but I don't know how to link it.

The Judge was of the opinion that he could not set aside an order on technicalities. Also he was not impressed that we waited 7 months to apply for set aside.. #40 on above thread.

So we don't feel that confident in getting it set aside, if we get the same judge.

 

Regards Molly

 

Well if you've made one application to SAJ then there isn't much point in trying again

 

I think that you're in some difficulty - I would have thought that the only option open is to try to oppose the CO on general principles - that its' unfair to other creditors etc

[lilly white]

some light reading background

 

Enforcement of Civil Judgments

 

11.1 General

 

When a creditor has obtained judgment against his debtor, but the debtor does not satisfy that judgment, the creditor has to take steps to enforce it. A great deal of the work of the county courts is concerned with enforcement. The judge's part is usually confined to making orders which ‘bite’, for whilst most of enforcement procedure is office work, only a judge can commit to prison for contempt in not complying with a court order. Only in the case of judgment summonses does that sanction apply to failure to pay. In all other cases it is confined to failure to comply with a previous order of the court, typically one to attend or to provide information. The Courts and Legal Services Act, 1990 gave district judges certain powers to commit for contempt. Those powers extend to orders concerned with attachment of earnings. In other cases the power is that of the circuit judge.

 

The European Convention on Human Rights, incorporated into English Law by the Human Rights Act 1998, is primarily intended to protect the rights of the individual as against the State. The Convention contains many examples of prohibition on interference with the individual’s rights, and some positive obligations to protect the individual. These obligations are imposed both upon the State and upon ‘public authorities’. The civil courts are public authorities.

 

As ‘public authorities’, the civil courts may be required to apply the Convention even where the parties to the proceedings are private parties involved in a private dispute. The civil courts should, therefore, exercise their functions, including enforcement process, so as to comply with the terms of the Convention.

 

Article 6 of the Convention provides the right to a fair trial. In the determination of civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, with judgment pronounced in open court. All proceedings have to be in public, effectively the position under the Civil Procedure Rules, and reasons for making orders will have to be given. In enforcement matters there is no need for a detailed judgment, but there must be a statement of the order and the reasons why it is made.

 

In essence, Article 6 requires proceedings to be fair, with clear rules and procedures, a level playing field and an impartial determination that can be seen to be impartial and fair on the facts.

 

Article 6 implies a right to effective access to the court, and a right to an effective remedy. The right to a fair trial implies the right of a party to be present in order to be able to participate effectively in the conduct of the case. A party may, however, waive this right to be present, either expressly or implied, by failing to attend a hearing having been given effective notice of it. In the latter case there must be a right to a rehearing if the absence was not due to waiver but some other cause. Debtors have rights to be heard and to make applications to suspend or set aside.

 

Article 6 gives parties to a hearing the right to put their case forward under conditions that do not put them at a disadvantage in relation to their opponent. This may require the judge to afford some assistance to creditors or debtors appearing in person. Courts are under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (see Van den Hurk v. Netherlands (1984) 18 EHRR 481).

 

 

 

11.2 Means of enforcement

 

This is an area of court work governed by rules and prescribed forms. Judgment creditors have a number of ways in which to try to obtain money that is due to them. These notes set out the alternatives available in outline.

 

Detailed information as to the various steps to be taken and courses of action that are open is to be found in:

 

a) the relevant parts of the former County Court Rules now incorporated in Schedule 2 to the Civil Procedure Rules 1998 which contain, at Orders 25 to 31, a code for enforcement procedures;

 

b) procedural tables which set out the necessary practical steps;

 

c) County Court prescribed forms - these are identified by numbers with an ‘N’ prefix and their use is usually mandatory;

 

d) certain Acts, relating to particular remedies.

 

All of this material is contained in The Civil Court Practice, Schedule 2 to the Civil Procedure Rules 1998, and the various text books and guides to the Civil Procedure Rules 1998.

 

This is a very technical branch of the law, in which the Rules and Forms govern almost all else. Those to whom this technical and rather tedious branch of the law has become second nature are adept at referring in court to various processes by their form numbers, and court lists usually refer to the list applications in that way, so that many of the applications listed will be referred to simply as ‘N39’s’, etc.

 

Many defendants do not attend, and before making any order the judge should ensure that the necessary summons or order has been properly serviced, in due time. Either postal or personal service is usually certified by a bailiff on the back of the relevant form. Part 6.7 of the CPR deals with the deemed date of service. Rather unhelpfully, the periods of service for the various applications which may be listed differ greatly, and may be as long as 15 days or as short as 5 days. The judge should also ensure that any provision about tender and/or payment of expenses has been complied with.

 

This chapter deals in outline with methods of enforcing money judgments only. The existence of warrants of possession and warrants of restitution (to recover land) and also warrants of delivery (to recover goods) should be noted. These notes cover only the position of enforcing a judgment debt against an individual, not against a company or partnership (for the latter, see the CPR, Part 23 and Order 25 rules 9 and 10 in Schedule 2 to the CPR).

 

 

 

11.3 Transfer of proceedings for enforcement

 

In certain circumstances it is necessary for a judgment creditor to make application to a county court to transfer an action from one county court to another county court for the purposes of enforcement. These circumstances are set out in Order 25, Rule 2 in Schedule 2 to the CPR. An application for transfer must be made where a judgment creditor wishes to obtain an order for:

 

a) the oral examination of the debtor, which must be undertaken in the court for the district in which the person to be examined resides or carries on business; or

 

b) a charging order under section 1 of the Charging Orders Act 1979; such an application must be made to ‘the appropriate court’ as defined in the Act; or

 

c) an attachment of earnings order; such an application must usually be made in the court for the district in which the debtor resides; or

 

d) the issue of a judgment summons; such an application is made to the court for the district in which the debtor resides or carries on business.

 

Application for transfer for enforcement in the county court is by written request.

 

Judgments of the High Court may be transferred to the county court under sections 40 and 105(1) of the County Courts Act 1984, following which they may be enforced as County Court Judgments. There is also power to order the enforcement of the awards of certain tribunals in Order 25 rule 12 in Schedule 2 to the CPR. Conversely, judgments of the county court may be transferred to the High Court for enforcement (see Practice Direction at (1998) 4 All E.R.63.

 

 

 

11.3.1 Limitation

 

Section 24 of the Limitation Act 1980 provides that no action can be brought on a judgment after six years from the date that it became enforceable. However, that only applies to the commencement of fresh proceedings on the judgment, and not to procedural steps in the original action to enforce the judgment. In practice, warrants must be renewed after 12 months, and leave to proceed with enforcement is required after the expiration of six years. In cases where a hearing is necessary, e.g. garnishee or charging orders, leave can be sought at the hearing. In other cases, e.g. warrants of execution, an application for leave to issue is needed (See Lowsley v. Forbes (1998) 3W.R.L. 501 - charging order made 111Ú2 after the judgement). Application must be by notice, pursuant to paragraph 2.1 of the Practice Direction to Part 23 of the Civil Procedure Rules 1998.

 

11.4 Warrants of execution

 

By far the most common method of enforcement is to issue a warrant of execution in form N42©. This empowers a Court Bailiff to seize enough of the Defendant’s possessions to enable a resulting sale to realise sufficient to discharge the debt and costs of execution.

 

A judgment creditor can apply in Form N323 for the issue of a warrant of execution. A fee is payable on a sliding scale, depending on the amount claimed. On issue of the warrant of execution the judgment debtor is given seven days in which to pay. If he fails, the bailiffs will attend, though they have no right to enter save with the judgment debtor’s permission. Once in, they can seize and remove goods to be sold at auction to meet the judgment debt. They cannot take items which the defendant needs for his employment, or basic domestic items such as clothing or bedding, nor items which are leased, rented or on hire purchase (see generally Order 26 in Schedule 2 to the CPR).

 

A warrant of execution may be stayed on application by the debtor. Before execution, a stay would be on terms as to payment of the debt. After execution i.e. to recover goods taken, a stay would be on terms as to payment and the debtor would be required to pay the fees and costs of execution before return of the goods.

 

The only way in which the judge becomes involved in this procedure, and it is generally the district judge, is when the defendant applies to have the warrant suspended (application in Form N245 and order in Form N35A), or where a dispute arises as to the ownership of goods which have been seized and interpleader proceedings are started. As to whether or not the court suspends will depend upon the facts in each individual case, although if it is a trade debt it is unlikely that a suspended order will be appropriate.

 

 

 

11.4.1 Walking possession

 

Walking possession is an agreement made between the bailiff and the debtor, allowing the debtors’ goods to remain on the premises for the time being, but leaving it open to the bailiff to return and remove the goods specified in the agreement if the debt remains unpaid. ‘Rescuing’ goods (i.e. removing them from premises when they are subject to a walking possession agreement) can be punished by imprisonment for a term not exceeding one month or by a fine or an amount not exceeding level 4 on the standard scale, or both (but see Newman v. Modern Bookbinders Ltd (2000)), The Independent, February 3.

 

11.4.2 Interpleader proceedings under execution

 

By interpleader proceedings under Order 33 in Schedule 2 to the CPR, any person making a claim to or in respect of goods seized in execution or the proceeds or value of those goods may make claim by delivering a notice of that claim to the bailiff or the court for the district in which the goods were seized.

 

The notice must state the grounds of the claim and the claimant’s full name and address. On receipt of a claim the court must notify the execution creditor and, except where the claim is for the proceeds or value of the goods, send notice to the claimant requiring him to deposit in court either security for or the amount of the value of the goods claimed, or the sum which the bailiff is allowed to charge as costs for keeping possession of the goods. The execution creditor must give notice to the court indicated whether he disputes the claim or admits the claim and requests the district judge, as chief bailiff, to withdraw from possession. If the claim is admitted, the creditor is not liable to the district judge for any fees or expenses incurred after receipt of the notice. The district judgment must then withdraw from possession, and he may apply to the circuit judge for an order restraining the bringing of any action against him for or in respect of his having taken possession of the goods or money.

 

Where the execution creditor gives notice disputing a claim, or where the execution creditor fails to reply to a claim within four days after receiving notice, the district judge must issue an interpleader summons in Form N88. The court then fixes a date for a hearing by the circuit judge, and serves the summons both on the execution creditor and the claimant not less than 14 days before the return day. The issue is then determined by the circuit judge.

 

It is possible to claim damages in interpleader proceedings under an execution. Thus, a claimant may claim damages from the execution creditor or from the district judge (e.g. where goods are sold at a gross undervalue) and an execution creditor may claim damages from the district judge (e.g. where the wrong goods are seized). The party claiming must give notice of the claim, stating the amount and the grounds of the claim. In the county court, the district judge has no jurisdiction to determine an interpleader following execution, although if sitting in the High Court he does.

 

 

 

11.4.3 Article 1 of the 1st Protocol (protection of property)

 

Everyone is entitled to the peaceful enjoyment of their possessions. No one shall be deprived of their possessions except in the public interest and subject to the conditions provided for by law.

 

Deprivation of property will only be justified if the ‘conditions provided for by law’ are met. Thus all methods of enforcement that involve deprivation of property will be subject to a requirement that the procedures attaching to them are strictly followed. All enforcement procedures potentially involving deprivation of property already contain provisions for notice and rights for the debtor to be heard or to make application to the court to be heard. Such hearings will have to meet the aims of Article 6.

 

11.4.4 Article 6

 

It is not thought that the dual role of the district judge incorporating his position as chief bailiff under section 123 of the County Courts Act 1984 offends the requirements of Article 6 for an impartial determination.

 

11.5 Garnishee orders

 

There is power under Order 30 in Schedule 2 to the CPR for a judgment creditor to apply to the court for a garnishee order where he can show that he is owed money by a third party.

 

A garnishee order attaches payment of the judgment to a debt owed to the defendant by a third party so that it then has to be paid to the creditor rather than to the defendant. Garnishee can be an effective method of enforcement, but the debt of the garnishee has to be ‘due from the garnishee’ - it is not enough that it shortly ‘will be’ due. The effect of the order is that the third party has to pay the money, not to the judgment debtor, but to the judgment creditor, in part payment or in discharge of the judgment debt. Typically it can be used against bank accounts and the like. It is unlikely that garnishee proceedings will come before the circuit judge. Joint accounts cannot be made subject to a garnishee order unless all account holders are debtors. You should, in any event, refer to CCR Ord 30 for guidance.

 

A garnishee order is usually made by a district judge and is a two-stage process. A garnishee order nisi, which freezes the debt, is in Form N84 and an absolute order, which directs payments to the creditor, is in Form N85. There has to be a 15-day interval between these orders, as the holder of the money has to be served 15 days before the order absolute can be made and the debtor has to be served seven days after service on the garnishee but with seven days before the final absolute order.

 

Application is by filing a witness statement containing the particulars required by Order 30 rule 2.

 

The remarks made below in relation to charging orders apply with equal force.

 

11.6 Charging orders

 

A charging order charges payment of the debt upon the defendant’s property or securities. The power is under the Charging Orders Act 1979 and Order 31 in Schedule 2 to the CPR and the relevant forms are N86 and N87. The sum due must be a fixed sum under a judgment.

 

A charging order is made by a district judge; a circuit judge is only involved if there is an urgent application when no district judge is available or if there is an appeal.

 

The procedure is in two stages: form N86 is a charging order nisi, and Form N87 a charging order absolute. There has to be an interval of at least seven days between them. Application for a charging order nisi is by filing a witness statement containing the particulars required by Order 31 rule 1(2). A copy of the order nisi must be served on the debtor and any person with responsibility for the asset. The order nisi freezes the asset until the order absolute can be made on notice. The defendant must be in default before an order can be made and consideration has to be given to his circumstances and possible prejudice to other creditors since, of course, the effect of the order is to tie enforcement of one debt to what may be the defendant’s sole realisable asset. If the defendant is insolvent and has been adjudicated bankrupt after the order nisi, that is clearly a sufficient reason for not promoting further the interests of one creditor. The order can be varied or discharged at any time on application by the defendant or any other person with an interest in the property charged. There are helpful notes in the textbooks as to the position where the defendant’s interest is shared with a spouse.

 

A charging order may be enforced by application for an order for sale under Order 31. Such an application must be by claim form under Part 8 pursuant of the CPR to Practice Direction 8B.

 

Some enforcement procedures affecting the occupation of a home may require consideration of Article 8 of the European Convention on Human Rights (the right to privacy). Everyone has the right to respect for his private and family life and his home. There must be no interference by a public authority with the exercise of this right, except such as is in accordance with the law, and there is in consequence a need to ensure that steps taken, particularly in regard to charging orders and orders for sale, follow the correct procedures and afford fair hearings.

 

 

 

11.7 Attachment of earnings

 

Under the Attachment of Earnings Act 1971 and Order 27 in Schedule 2 to the CPR the court is empowered to order an employer to deduct a set amount from the judgment debtor’s earnings and to pay that to the collecting officer of the county court, who accounts to the creditor. As district judges have a power of committal under section 23(11) of the Act, applications other than appeals rarely come before a circuit judge. The relevant prescribed forms are N55 to N66A. The proceedings for an order have to be in the debtor’s home court.

 

The procedure, which mirrors but is not strictly identical to that for oral examinations, is briefly as follows. The district judge:

 

a) establishes the defendant’s status Ð i.e. employed or not Ð and means;

 

b) makes, where appropriate, an attachment of earnings order in form N60 or a suspended attachment or earnings order in Form N64;

 

c) specifies the defendant’s normal and protected earnings rate, below which the earnings must not fall;

 

d) considered whether it may be relevant to make:

 

e) an administration order in Form N94. Such an order deals with the whole of the defendant’s indebtedness to all his creditors under separate judgements (the district judge may order the defendant to file a list of creditors for these purposes);

 

f) a consolidated order in form N66. Such an order deals with the whole of the defendant’s indebtedness to the same creditor under separate judgements.

 

g) If the defendant does not attend, the district judge orders him to do so in Form N58, which requires personal service, with five clear days notice. The defendant may respond to that by providing information in Form N56; the district judge can then make a provisional order in Form N57.

 

h) If the defendant fails to attend at the further hearing, or refuses to be sworn or reveal his circumstances, the district judge, on being satisfied as to service, may either commit him for no more than 14 days in Form N59, or have him arrested and brought before the court, in Form N12.

 

i) If the defendant fails to co-operate, but his employer is known, the district judge may order an N338, which requires the employer to provide a certificate of earnings, and this will enable an order to be made.

 

Offences which may be committed under this procedure either by the defendant or by his employer are set out in section 23 of the Attachment of Earnings Act. They relate to the debtor or his employer failing to supply details of employment, change of employment, earnings, resources and needs. Notice to show cause in Form N63 has to be given. Compliance is secured by fine, suspended committal or immediate committal, although not all of the offences can be dealt with by suspended or actual committal. The maximum fine is £250.

 

 

 

11.8 Oral examination (N39 and N40)

 

Behind all of these specific methods of enforcement is the procedure for oral examination of the debtor’s means. This is not a method of enforcement in its own right, but is designed to inform the creditor which of the specific enforcement methods set out above is likely to be of most use to him. It is also the procedure which most often results in a hearing before a circuit judge, and which can present the most difficulties. If a judgment creditor is unable to use any of the means of enforcement set out above, because he does not know which is appropriate, or if he is ignorant of the judgment debtor’s means and assets, he can compel the debtor’s attendance at court to appear before a district judge or one of the court officers not below the rank of higher executive officer (HEO), to be examined and cross-examined as to his means. He can then establish how best to obtain his money. The power extends not only to compelling the judgment debtor to attend, but also to compelling him to produce relevant documents. It also extends to named officers in corporations who may be required to attend to produce and allow inspection of the records of that corporation.

 

This procedure derives its authority from Order 25 rule 3 in Schedule 2 to the CPR and is started by the issue of Form N37, which is normally served by post. Form N37 orders the defendant to attend before the district judge or one of his officers, not below the rank of HEO. In practice the appearance is usually before a court officer. The debtor has to complete a questionnaire confirmed on oath which is, in effect, an affidavit of means. The form is provided by the court. Although the creditor may submit questions, he will not usually attend. If the debtor does what is required, a circuit judge will not be troubled with the matter. The creditor, having obtained information about the debtor, can then decide which of the actual enforcement procedures to adopt. It is if the debtor does not attend, that the problems begin.

 

11.8.1 Form N39

 

If the debtor attends but does not provide information as to his means, or does not attend at all, an order in Form N39 is issued. This orders the debtor to attend before the circuit judge, has to be personally served at least 10 days in advance, and contains what is, in effect, a penal notice as to the consequences of non-compliance.

 

The issue of Form N39 should be so arranged that it orders the debtor to attend on a day and at a time when the judge is sitting in open court, so that debtor’s name can be called and the judge can satisfy himself whether he has attended or not. If the debtor does not attend, the circuit judge may then order his committal (in Form N40).

 

Service of the N39 must be proved (see below).

 

It is important to note that Order 25 rule 5A makes provision for the payment by the creditor to the debtor of money to cover his expenses in attending seven days before the hearing, if so requested (conduct money, and the circuit judge is required to be satisfied either that no such request has been made by the debtor or that it has been complied with, before a committal order can be made. The creditor is required to file a certificate, often in the form of a letter, dealing with this not more than four days before the hearing, and if there is no such certificate, no committal can be made.

 

If the debtor does attend before the circuit judge the matter can be put back to allow the debtor to disclose his means. The debtor then attends the court officer, complete the questionnaire, and that is usually an end of the matter.

 

11.8.2 Form N40

 

If the debtor does not attend, or does attend but refuses to disclose his means, the circuit judge may make a committal order in Form N40, subject always to what has been said above about proof of service and any request for and payment of conduct money. Non-attendance can usually be dealt with by an order for committal for a specified period of seven or 14 days suspended on condition that the debtor attends on a further appointment to be notified to him. Attendance but refusal to comply is a rare occurrence, but might result in an immediate committal in a bad and plain case of contempt.

 

If the debtor actually goes to prison he may apply to be discharged (purging his contempt). There is no prescribed form for his application, but the resulting order is in Form N83.

 

11.8.3 Effect of Form N40

 

If an order is made in the terms of Form N40, it empowers the bailiffs to go to the judgment debtor’s home, arrest him, take him into their custody and deliver him to the governor of the appropriate prison where he is to remain, subject to remission, for the time that has been ordered. In practice, bailiffs armed with such a warrant invariably call on the judgment debtor, tell him that they have the warrant, and invite him to come to court to answer questions on an oral examination rather than being taken to prison. The judgment debtor usually considers that this is a more sensible course and by this means his attendance at court is achieved, he answers the questions, and the warrant is not otherwise executed.

 

All is well if the matter has been listed and is present in the list before the judge in court, but local practice has varied because Form N39 does not actually provide for that, and some courts do not arrange matters that way. Thus, the non-attendance on Form N39 may have been on another date and the judge has simply been informed by means of an initialled and dated note on the papers that the debtor did not attend. This has meant that the circuit judge has been asked Ð on paper, on a ‘without notice’ basis, as part of his ‘box work’ Ð to commit somebody to prison for contempt of court, endorsing the papers ‘CO 7 days (suspended)’, with initials and date. There are serious misgivings about a practice whereby judgment debtors might be committed to prison as a result of no more than a box work exercise. This is not good practice and may not conform to Article 5 (the right to liberty) or Article 6 (the right to a fair trial) of the European Convention on Human Rights.

 

The procedure used for oral examination and the steps to be followed on the N39 are regarded as ‘a criminal charge’ (see Benham v.. UK (1996) 22 EHRR 293) and there will be a need to ensure that the aims of Article 6 are met. As a penal process with human rights implications under the European Convention on Human Rights, the nature of the contempt and its implications must be put in writing to ensure that the debtor knows the significance of his position and the case against him, giving him the opportunity to seek legal advice and to apply for legal aid. Furthermore, as there is an appreciable risk of imprisonment, the provisions as to service and conduct money must be strictly met. The debtor will have to be informed, ‘in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest’, preferably by written notice, and of his right to apply to purge his contempt and to seek legal advice for that purpose. The decision in Newman v.. Modern Bookbinders Ltd (2000), The Independent, February 3, makes it clear that the procedure followed must result in a formal hearing preserving the debtor’s rights. The warrant of committal must spell out precisely why the debtor is in prison.

 

It should be noted that there is no provision in this procedure to have the defendant arrested under Form N112 and brought before the court.

 

Most circuit judges take the view that, as the object of the exercise is to make the defendant pay, something short of actual committal is desirable, and this can be brought about by different means including:

 

a) a committal suspended if the defendant attends on another occasion;

 

b) an immediate committal with liberty to the defendant to apply to have it revoked and a direction that, if he does, he is to be brought to court for that purpose.

 

11.8.4 Service

 

Proof of service is essential before any orders can be made. It is necessary to add a little on the question of service of N39s and these comments will apply equally to N69s about which there is mention below.

 

The position appears to be that procedure for oral exams is governed by Order 25 rule 3, in Schedule 2 to the CPR. However, the general provision about mode of proof of service, formerly in Order 7 rule 6 of the County Court Rules does not survive. There is no general rule in the CPR as to how service is to be proved. Part 6.10 prescribes things to be included in a certificate of service when such a certificate is required by a rule, Practice Direction or court order, but there is no such requirement in Order 25, rule 3.

 

Where a bailiff serves, he signs the form of certificate of service on the reverse of the order. That remains adequate proof of service, as the vast majority of N39s are bailiff-served, the certificate will be regarded as sufficient. Where the creditor serves, however, there is need for some caution. The CPR make no reference to affidavits of service, which have been replaced with certificate of service, but the CPR do not require a certificate to be supported by a statement of truth. The effect of failure to attend on an N39 is committal. Before making such an order a judge is entitled to be fully satisfied that the debtor has been properly serviced. A judge may accept a certificate of service of an N39, but with the liberty of a debtor stake, better practice would require a certificate supported by a sworn statement or at the least a witness statement enforced with a statement of truth. It is for the judge to satisfy himself that the N39 has been personally served. In the event that the situation arises it is sensible to check for any local practice and keep in mind that proper service must be proved before a committal order can be made.

 

Substituted service is arguably possible under Part 6.8 of the CPR by invoking the overriding objective in Part 1. It is not to be regarded as safe practice and is unlikely to survive the implementation of the Human Rights Act 1988.

 

11.8.5 Suggested safeguards

 

Checklist

 

A judge cannot make even a suspended committal order without being sure that each of the following steps has been fully complied with:

 

c) the defendant is adequately identified Ð an order cannot be made against ‘Mr Smith’ or ‘Jones (female)’;

 

d) there is a judgment debt which the judgment debtor has not paid;

 

e) Form N39 has been personally served on the judgment debtor; there must be proof of service;

 

f) service was not less than 10 days before the hearing (Order 25 rule 3(5));

 

g) if the judgment creditor has been asked, he must have provided a sum reasonably sufficient to cover the judgment debtor’s expenses in travelling to and from court at least seven days before the hearing, unless such a sum was paid to him at the time of the service of the order for oral examination;

 

h) the judgment creditor filed a certificate, not more than four days before the day fixed for the adjourned examination, stating that either no request had been made under Order 25 rule 3(5)(a) (see above), or that a sum had been paid in accordance with such a request.

 

Even if satisfied on all these points, a circuit judge is not recommended to say: ’committal order seven days’. Even if the local practice is rarely if ever to enforce the order, but only to bring the debtor to court first of all, it is better to allow for mishaps, ensure that the order reflects what is intended, and protecting the bailiffs. Thus it may be more appropriate to say: ’committal order 14 days’ and to add at the end of the N40: ‘You are further ordered to bring the defendant to court before delivering him to the Governor of . . . Prison, or: ‘committal for 14 days suspended for seven days and discharged if the defendant attends for oral examination within seven days’.

 

 

 

11.9 Enforcing a judgment debt by committal (N67, N69)

 

11.9.1 Debtors Act 1869 section 5

 

Historically a successful litigant would try and enforce his judgment under section 5 of the Debtors Act 1869 which enabled the court to send someone to prison for a term not exceeding six weeks if he had the money to pay the debt but did not do so. That power is now severely curtailed, and, under section 110 of the Administration of Justice Act 1970, can only be used for the enforcement of High Court or county court maintenance orders or judgments and orders for payment of income tax or national insurance contributions (see generally Order 28 in Schedule 2 of the Civil Procedure Rules 1998 and section 5 of the Debtors Act).

 

Judgment summonses are unique in that they are not universally available. Their most familiar use is by local Collectors of Taxes, and they represent the only method of enforcement which can result in the debtor being sent to prison for default in paying.

 

11.9.2 Form N67

 

A judgment summons must be served personally at least 14 days before the hearing, which is open court, and there are provisions as to the payment of conduct money, if requested. The summons, in Form N67, requires the debtor to attend to be examined on oath as to what means he has or has had since judgement and to show cause why he should not be committed to prison for default.

 

If the debtor attends, the Collector of Taxes will normally either come to an agreement with him, asking for a new order for payment in Form N73 supported by a suspended committal order, or he will ask for an adjournment to ascertain what tax actually should be assessed and paid, because most judgments for tax allegedly due are founded upon estimated assessments where the debtor has not bothered to make a return or submit accounts.

 

The judge can, in addition to making a new Order or adjourning the judgment summons, make a committal order for not more than 14 days in Form N70 or a suspended order in Form N72. An actual or suspended committal has to be founded upon refusal or neglect to pay where the means to do so have existed. If the judgment debtor does not attend the judge cannot make a committal order or a suspended committal order unless sure on each of the following points:

 

a) there was a judgment against the judgment debtor

 

b) there had been a failure by the debtor to pay the debt or order or any instalment that was ordered and

 

c) since the judgment debt or order was made, the judgment debtor has had the means to pay but has refused or neglected or refuses or neglects to pay.

 

The judge can make an attachment of earnings order, although the latter is rare and can only be made if the court is satisfied that the debtor has not paid through wilful refusal or culpable neglect.

 

Any order to pay can include provision for payment by instalments and can be varied or rescinded.

 

11.9.3 Form N69

 

If the debtor does not attend on the N67 the judge will adjourn the judgment summons and order him to do so in form N69, the ‘Order to Attend’, as it will be requested.

 

Order 28, rule 4(2) provides that at the time of the service of the N69 ‘there shall be paid or tendered to the debtor a sum reasonably sufficient to cover his expenses in travelling to and from court unless such a sum was paid to him at the time of the service of the judgment summons’. It is essential that this is proved strictly, before any of the powers under section 110 is used.

 

If the debtor does not then attend, upon proof of service, which has to be five days before the hearing, and proof of tender, payment or refusal of travelling expenses, he can be committed for not more than 14 days, which can be suspended. He can also be arrested on warrant N112.

 

It is advisable to consider whether it is not better to use the powers in section 110(3) and, in addition to or in lieu of any committal order for failure to attend, order the debtor be arrested and brought before the court either directly or at such time as may be ordered. If he does then attend, gives the necessary information about his means, and makes such offer as he can to pay off the money, it may well be appropriate to issue a Form N711 discharging any order for committal that may have been made.

 

11.9.4 Suspended sentence

 

As the main object of the summons is to compel the judgment debtor to attend and to pay, rather than punishing him for past failures, it is wholly exceptional for a judgment debtor to be sent to prison. In an appropriate case and where the points above are proved, it is possible to pass a sentence of imprisonment suspended upon performance by the judgment debtor of an appropriate scheme of repayment.

 

11.9.5 Discharge

 

Any order for committal can at any time be revoked and, if the debtor is in custody, it can be ordered that he be discharged in Form N711.

 

11.9.6 Service and committal

 

Proof of service is essential before any order can be made, and the comments above on the question of service of N39s will also apply to N69s.

 

11.9.7 European Convention on Human Rights

 

Article 5 provides that:

 

‘everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save for the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law in accordance with a procedure prescribed by law. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him and everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is now lawful.’

 

Any detention must be: (a) ‘lawful’ and (b) carried out ‘in accordance with a procedure prescribed by law’. Strict compliance with the procedure is required.

 

The procedure used for judgment summonses and the steps to be followed on the N67 and N69 are regarded as ‘a criminal charge’ (see Benham v. UK (1996) 22 EHRR 293) and there will be a need to ensure that the aims of Article 6 are met. These procedures result in penal process. The nature of the contempt and its implications must be put in writing to ensure that the debtor knows the significance of his position and the case against him, giving him the opportunity to seek legal advice and to apply for legal aid. The provisions as to service and conduct money must be strictly met. The debtor will have to be informed, ‘in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest’ preferably by written notice, and of his right to apply to purge his contempt and to seek legal advice for that purpose. The decision in Newman v. Modern Bookbinders Ltd (2000) The Independent, February 3, makes it clear that the procedure followed must result in a formal hearing preserving the debtor’s rights.

 

The warrant of committal must spell out precisely why the debtor is in prison.

 

 

 

11.10 Insolvency

 

Insolvency proceedings seldom come before a circuit judge and, when they do, it is usually upon a motion to appoint a trustee in bankruptcy or an application by the trustee to sell the matrimonial home - usually the defendant’s most substantial asset. Normally in such cases, the court’s discretion is more apparent than real, as the defendant’s interest in the property is usually his sole realisable asset and his creditors are entitled to have it realised. Typically the issue which creates the greatest problem is protection, if possible, of the position of the defendant’s spouse, if a co-owner of the property.

 

11.11 Costs

 

All applications result in the defendant’s debt being increased by the costs of making them. In many instances costs are almost automatic and are effectively prescribed, but in others they are not.

 

Fixed costs will be the normal provision. The table of fixed costs in Appendix B to Order 38 rule 18 of the County Court Rules incorporated in Schedule 2 to the CPR sets out the amounts to be allowed, in addition to the court fees, unless the court orders otherwise.

 

Assessed costs will be limited to exceptional cases. The court is asked to specify a figure assessed under Parts 44.4 and 44.7 of the CPR on a standard basis. It is important to find out what the ‘norm’ is in such cases at each court. Asking a solicitor to nominate a figure will frequently result in a high figure, in the expectation that it is likely to cut it down.

 

The court clerk should be able to assist with an indication of what is normally awarded. The judge will consider the solicitor’s statement of costs showing the hourly rates appropriate and what time has been involved in the preparation of an appearance upon the application. Not very much time should have been spent, as the preparation is merely form-filling which should not require the services of a senior fee-earner and a good deal of form-filling can be done in 10 or 15 minutes. The solicitor may have attended court for other purposes and cases, and not solely for the application in question.

 

In a perfectly straight forward case, as most are, there is no good reason why an oral examination, conducted as it is, by a member of the court staff, requires the attendance of the creditor’s solicitor.

 

11.12 Administration orders

 

An administration order requires the debtor to make a regular payment of a fixed sum in respect of his total indebtedness and apportions this sum amongst the creditors pro rata in accordance with the amounts owed. A county court may make an administration order providing for the administration of a debtor’s estate where the debtor is unable to pay the amount of a judgment obtained against him and alleges that his whole indebtedness amounts to a sum not exceeding £5,000. Debts that may be recovered under deduction from benefit pursuant to the Social Security Administration Act 1992 are usually excluded. A sum ordered to be paid under an administration order is paid to the court by the debtor and administered by the court. The procedure is governed by Order 29 in Schedule 2 to the CPR.

 

A debtor who desires to obtain an administration order must file a request in Form N92, but where, on an oral examination, the debtor furnishes to the court on oath a list of his creditors, the amount which he owes to them and sufficient particulars of his resources and needs, the court may proceed as if the debtor had filed a request. On the filing of a request or list the court may determine the proposed amount and frequency of the payments to be made under an administration order, provided the court considers that the debtor’s means are sufficient to discharge the total amount of the debts included in the list in full within a reasonable period. The court must then notify the debtor of the proposed rates, requiring him to give written reasons for any objection he may have to the proposed rates and send to each creditor mentioned in the list provided by the debtor a copy of the debtor’s request or of the list together with the proposed rates requiring any creditor to give written reasons for any objection he may have to the making of an administration order. Where no objection is received, the court may make an administration order providing for payment in full of the total amount of the debts included in the list and may exercise the power of the court to make an attachment of earnings order to secure the payments required. Where the debtor or a creditor notifies the court of any objection within the time states, the court must fix a day for a hearing at which the district judge will decide whether an administration order should be made.

 

There are procedures for reviewing an administration order generally and the court may at any time direct that the order is to be subject to review. At the review, court may suspend the operation of the order; vary any provision of the order; revoke the order either forthwith or on failure to comply with a condition specified by the court; or make an attachment of earnings order to vary or discharge any such order already made.

 

Where it appears that the debtor is failing to make payments in accordance with the order, the court must send a notice to the debtor informing him of the amounts which are outstanding and requiring him to make the payments as required by the order or explain his reasons for failing to make the payments and make a proposal for payment of the amounts outstanding or a request to vary the order. If the debtor does not comply with the order the court must revoke the administration order.

 

Whilst an administration order remains in force, a debtor is given a degree of protection against the institution of bankruptcy proceedings and enforcement proceedings by creditors other than landlords.

 

11.13 Register of county court judgments

 

The Register of County Court Judgments Regulations 1985 require every county court to send a return of every county court judgment entered, except judgments after a contested hearing (unless an instalment order is made or enforcement is pursued) and judgments made in family proceedings, every administration order and every order restricting enforcement made under section 112A of the County Courts Act 1984 to the Keeper of the Register unless notice of application for a new trial or notice of appeal to a superior court has been given, and proceedings on the judgment have been stayed by order, or a deposit has been made or security given. It should be noted that this will include registration of orders for the payment of costs where such orders have been made following an uncontested hearing. Thus where the claim is settled but the costs summarily assessed, the order made will be registrable. The Register is maintained by Registry Trust Ltd. The Registry operated from 173-175 Cleveland Street, London W1P, 5PE, tel: 020 7387 8279.

 

Unless the judgment is satisfied within one month the Register records the name and address of the debtor, the amount of the judgment including costs, the county court entering judgment and the case number. The Register is open to public attendance for the purposes of obtaining copies of any information contained in an entry in the Register. A request in writing is necessary, and a fee is payable.

 

An entry must be cancelled where the court notifies that a judgment has been set aside or reversed and is marked ‘satisfied’ where a defendant produces a certificate of satisfaction of judgment debt, accompanies by a fee.

[molly13]

I've got no money... Thank you for your help..:)I think me may do that, I suppose we could still inform the judge of the noncompliance of CPR18, no agreement, no DN or termination letter.

 

lilly white..Wow, that's a lot of reading... not sure I understand all of it though, but thank you, I'll have a proper read and try to dissect it:)

 

But can I still try to get the alleged agreement, DN and termination letter from claimant under CPR31?

Regards

Molly

[supasnooper]

Some more succinct reading on Charging Orders and what grounds you may oppose them, have read of these links -

 

Debt Factsheets - Charging orders in the county court

 

National Debtline England & Wales | Debt Advice | Factsheet 15 Charging Orders In The County Court

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1848474.html

[supasnooper]

As you've already not been successful with a set-aside application, the judgment stands and subsumes the "agreement" as such.

 

I don't think it would be beneficial to you to mention no CCA, etc. as a judge will advise you that the time for that, was at the initial claim stage.

 

I would advise you concentrate on opposing the Charging Order.

[molly13]

Thanks for that supasnooper...

 

The set aside application was for a different claim, but same claimant.

 

Just worried we get the same judge, who thinks lack of DN Agreement etc are technicalities!!!, if we go for set aside on this one.

I will read through your links, and like you say, concentrate on opposing. I may come back here with help for that, if I may.

Regards

Molly

[I've got no money]

Thanks for that supasnooper...

 

The set aside application was for a different claim, but same claimant.

 

Just worried we get the same judge, who thinks lack of DN Agreement etc are technicalities!!!, if we go for set aside on this one.

I will read through your links, and like you say, concentrate on opposing. I may come back here with help for that, if I may.

Regards

Molly

 

Hang on a second - I thought that it was the same case - if you haven't made an application to set aside on this case you need to.

 

Can post the summons, defence and cca

[molly13]

Hi I've got no money,

Still at work, so won't be able to scan POC till tomorrow sometime,

But the Claim was for an o/d joint account stating we had withdrawn monies ...we didn't, also stating an Agreement made in writing between xxxx & yyy, no agreement produced by DCA when asked for, said it didn't come under CCA, they didn't respond at all to CPR 18, no agreement from SAR OC,& No Default Notice.

We did not defend other than the interest and fees. Unfortunately I was not aware of CAG at the time or,with my knowledge now, we would have defended the whole claim.

It appears that the interim charging order is in place and we are going to be served for charging order hearing.

My worry about asking for set aside is that we will get the same judge, who was annoyed at the delay in applying, not interested in the legalities of the case, and seemed to think that the abscence of Agreement,Default Notice and different dates of assignment were just mere technicalities.

 

Having said that, can we still apply for set aside even though the interim charging order is in place?

Got to get back to work now, I'll try to pop back later, otherwise it won't be till tomorrow sometime.

Thanks for your help.

Regards

Molly

[I've got no money]

In terms of what you defended - was their a trial and did you lose or did the claimant not pursue that part of the claim.

 

If there has been a trial you have no chance of a set aside - you would have to try to appeal out of time

[molly13]

We got the claim form from Northampton, acknowled claim, and took advice from CCCS and disputed the interest and costs. Issued with a Judgment to pay £xx per month. Asked for redetermination and was ordered to pay £1 per month, which we have been doing., but now out of the blue the claimant is going for charging order?

Regards

Molly

[molly13]

Hi,

I have just read through sequencis excellent guide to charging orders.

I do have one quick question though. Does anyone know if my objections should be made in a witness statement form, or will an ordinary objection letter suffice?

Thanks in advance.

Molly:)

[hammyhound]

Hi Molly, I put my objections in a letter to the court and it was suffice. Don't forget OHs (if you have one) letter also to the objection.

 

HH

[molly13]

Hi,

 

Thank you for that hammyhound:)

 

Will get the letter put together over the week-end..

 

Molly

[molly13]

Hi,

Had my hearing adjourned, the claimant had not notified other creditors.

The judge ordered them to do so within 28 days.

My question is:

How do I know if they have done it? Will the other creditors let me know?

Thanks.

Molly:)

[hammyhound]

Molly the problem is you wont. Have they listed your creditors on the application for the charging order and are they correct. My guess would be that they will wait until the very last minute before informing the creditors so your creditors wont have time to object before your next hearing:evil:

 

Ask the other side for copies of the letters that they send say the later part of next week and if they dont reply send up a chasing letter. Keep copies of these letters that you send and show them to the judge at the next hearing to prove that your creditors wont have time to object.

 

Is it a large debt or are your other creditor's debts larger. This is something else you need to address with the judge.

 

Someone else on here can also probably give you advice.

 

Update us just before your next hearing so people can advice you what to say.

 

HH

[molly13]

Hi HH,

Thanks for your reply.

The other side ticked the box saying they were not aware of any other creditors. Mentioned breach of CPR 73 in objections, judge ordered them to inform other creditors. Some of the other creditors are owed substantially more than this claimant.

So as I understand it, the best thing then is write to the other sides sols. asking for the letters they send to other creditors.

Will they not have to supply these to the Court as well, seeing as it was the judge who ordered it?

 

Molly