Step 1 – check you can enforce your order
Timings
You can only apply to enforce your order if the debtor has not paid you in the timeframe set by the court. Usually, payment should be made within 14 days of the date of the order. So, usually you will need to wait for at least two weeks to pass before taking any decisions on enforcement proceedings.
If you have an order that was made some time ago, but you are only now thinking about enforcing it, be aware that you have 6 years from the date the order was made in which to enforce it. After that it will be too late.
Making sure the debtor knows about the order
If the debtor was not at the court hearing where the judge ordered them to pay you a sum of money, they may not know about the order. Usually according to the Civil Procedure Rules the court will make sure the debtor receives the court order. This is called ‘service’ or ‘serving’ the order. However, if the debtor later says they never received the order it will delay things for you. So, if you can, it is worthwhile checking with the debtor that they have received the order.
If you want to be sure that the debtor has received the order, you can serve it yourself (even if the court may have already done this). That way, you will have proof that you have served the debtor. Unless a specific rule tells you how you must do this or the judge says you have to serve the debtor in a particular way, you can make sure the debtor has the order via different methods.
You can send the order by post or email if you are sure of the address. You can leave it at the debtor’s address yourself if this is safe, or hand it to the debtor directly. Or, if this isn’t safe and you want to be completely sure the debtor does know about it you can pay for a professional, known as a ‘process server’ to personally hand it to the debtor.
For more help on this, you can find the court rules about when an order is classed as properly served by the court at Civil Procedure Rules 6.21 and 6.26.
Specific situations that will delay or prevent you from successfully enforcing the order
Insolvent debtors
If the debtor is about to become insolvent, or is insolvent, this could have wide ranging implications for any claims you might have against them.
The debtor may choose or be forced to go bankrupt. This is a legal process that can be used to deal with the situation where the debtor cannot pay debts they owe. If the debtor goes through bankruptcy proceedings, someone called the ‘official receiver’ takes over any land, property, money that the debtor has and deals with it according to strict laws on insolvency. This means that other people or companies that the debtor owes money to will also have rights over any assets and your judgment debt could be at the end of a long list.
If your debtor is a company and was insured, you might be able to bring a claim against their insurer directly, however this is a complicated legal point and you should certainly get legal advice before starting down this route.
Applications for a stay of execution
The debtor could apply to the court after the judgment order is made for an order called a ‘stay of execution’. This is an order that stops the judgment debt order from being enforced while the court is given new or more information.
This pause in the case can be temporary, while the debtor works out a detailed and realistic payment plan to pay you what you are owed, which might mean the court orders you get payments in smaller instalments over a longer timeframe. Or the debtor can ask the court to cancel or ‘set aside’ the order if certain circumstances apply, such as the debtor didn’t know about the case and/or you didn’t follow the right process.
If the debtor applies for either of these applications, there will be some delay and you may be asked to negotiate with the debtor about how they pay you or attend another court hearing where a judge decides what should happen next. If the debtor’s application is unsuccessful the court will tell you when you can start enforcement proceedings.
Debt Respite Scheme (Breathing Space)
The Debt Respite Scheme gives people with problem debt a short period of time to have breathing space from enforcement proceedings. People are classed as having problem debt if they cannot afford to pay their debt repayments.
There are two types of breathing spaces offered to people with problem debt. If your debtor is protected by either of these schemes you need to understand them more and not take certain action while the debtor is protected by the scheme. The scheme is managed by the Insolvency Service. They will tell you, by email or post, if the debtor in your case is protected under the scheme. During the time they are protected by the scheme, you must not contact them about what they owe you or start enforcement proceedings. You can have contact with their debt adviser if they have one.
- Standard breathing space protects people who have problem debt enforcement action for up to 60 days. So, if your debtor has this protection in place this will delay your application to enforce the judgment debt by at least 60 days.
- Mental health crisis breathing space protects someone who owes money and is also having mental health crisis treatment. It lasts as long as the mental health crisis treatment takes, plus 30 days. If this type of breathing space is in place for the person that owes you money it means it is hard to predict when you will be allowed to start enforcement proceedings.
You can read more about the Debt Respite Scheme in the Insolvency Service’s guidance for creditors. If your debtor is protected and you are considering what else you might do about your debt it is important to read the government guidance called Debt Respite (Breathing Space) Scheme - creditors’ responsibilities to the court first.
Before doing anything else check:
- the debtor has had the chance to pay in the timeframe given by the court. This is usually 14 days. Or, if you have had the order for some time, make sure you are within the 6-year time limit to enforce the order,
- the debtor knows about the judgment made against them, and
- none of the situations above apply in your case that might mean you shouldn’t or cannot apply to enforce the order now or for some time.
Step 2 – working out if it is worth trying to enforce your order
Now you know you can enforce the order you need to decide if it is worth your time, money, and effort to go back to court to enforce it. The main thing is whether or not the debtor has the money to pay you. If you are sure that the debtor has money but is just choosing not to pay then you can skip this section and go the section called The different ways you can enforce your order.
If you are not sure that the debtor has the means to pay, work your way through this section.
You need to think carefully about whether it is worth trying to enforce the order. To have had a county court judgment made in your favour, you will have already spent time and money on the problem. And it might have been stressful too.
If the debtor really can’t pay you are going to waste more time and money. There is no one who steps in to pay their debts unless they are insured for this particular problem and the insurer agrees to cover the claim.
So, you need to find out if your debtor has money or other things of value such as land, property, or investments – called ‘assets’ by lawyers – and where those assets are.
Where the assets are
Searches
There are some searches you can do that may help tell you more about the debtor’s financial situation. Some are free, others are charged for.
You can:
Find out who owns a property and whether there are any debts secured on it by searching information from the Land Registry.
Check whether someone is bankrupt by searching the Bankruptcy and Insolvency Register.
Check if a person or company is insolvent (does not have enough money or assets to pay their debts) by checking the public notices in the London Gazette.
Ask for information about the registered keeper of a vehicle from DVLA.
Check if a vehicle is stolen, written off or on finance at HPI Check.
Check whether a business or an individual has been fined or had court orders made against them at Trust Online.
Find information about a company and see if their accounts are up to date from Companies House.
Check the Attachment of Earnings Index to see if the debtor already has had this type of order made against them. You need to ask the court to do this – for more help see the section called How to enforce your order - attachment of earnings orders.
Find information about a registered charity and their accounts from the Charity Commission.
Carry out an internet search and check social media to find out useful information about the debtor. For example, lots of information can come up about a company in online reviews.
Enquiry agents
Lawyers sometimes uses enquiry agents to investigate whether it is worth starting legal proceedings against someone. Enquiry agents can provide a report about someone’s financial status. Typically, this will give you information about whether they are a homeowner or a tenant, whether they are bankrupt or have court orders against their name and their employment details. You may want to consider this option but check the cost before you go ahead. Some enquiry agents offer this service at a fixed cost - others charge an hourly rate.
You can find an enquiry agent through the Association of British Investigators or the Institute of Professional Investigators.
Applying to the court for more information from the debtor
This isn’t a quick fix as the process takes time. But it could be very helpful in giving you a clearer picture of the debtor’s current financial situation so you can decide what to do next.
Next are some advantages and disadvantages of this route to getting more information.
Advantages | Disadvantages |
You are likely to get some useful information as the debtor must come to court to answer questions – if they knew about the hearing and failed to attend, they can be sent to prison. This can help you decide whether to go ahead and apply to enforce the order and also which method to use. | By applying, the debtor will know you are interested in their financial situation which they may be trying to keep private. When they find out about the application, they might rush to get rid of any assets that are easily sold or hidden. Lawyers call this ‘dissipating assets’. If you think there is a real risk of this happening you need to get urgent legal advice about a freezing injunction. |
| The process is quite complicated with several steps to go through, so it is not quick or easy. |
A court officer will ask a comprehensive list of questions for you and you do not need to attend unless you want to. | You need to look at the list of documents and questions that the debtor will be asked to provide and answer and work out if you need to ask for other documents or ask other questions. |
| There is a court fee to pay for the application and if you need to arrange for a court bailiff to give the order to the debtor you will have to pay for that too. If the debtor fails to attend and another order is made then that has to be given to the debtor too. If the court bailiff gives this to the debtor for you then there is another fee. These fees can be added to the money the debtor owes you already and if you are on a low income, you may not have to pay all or any of the court fees. |
Now that you have read about some advantages and disadvantages of this process, you may have decided to apply for this order. If so, you can read our step-by-step guidance to help you through the process. If not, you can skip this bit and go on to the short section called Next steps.
The process of applying to the court for an ‘order to obtain information’
Step 1 | Choose the correct application form to apply for an order that the debtor attend court and answer questions about their financial situation: - If the debtor is an individual, you will need application form N316
- If the debtor is a company, you will need the details of one of the officers of the company such as a director. If you don’t have these you need to search online at Companies House for their details. Then you need application form N316A
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Step 2 | The notes that go with the form tell you what documents the debtor will be asked to provide. Read these notes and see if you want the court to ask the debtor to provide other documents. To see what questions the debtor has to answer and if you want to add any extra questions, look at the form the debtor has to fill in – EX140 (for individuals) or EX141 (for companies). |
Step 3 | Fill in the correct form (see step 1) and add in any questions or documents you want added to the standard ones. The court fee for this application is £65. You need to have this money to start your application. If you are on a low income, you may be able to get help with fees. To start your application, you need to ‘issue’ it at the court. Find the debtor’s local county court hearing centre and send it there. |
Step 4 | When the court has processed your application, it will make an order setting out when and where the questioning of the debtor will take place. The order will remind the debtor of the amount of money due to you and that they need to pay it to you directly if they now wish to do so to avoid the questioning. If you receive the money you are owed before the date in the order you must tell the court as soon as possible and they will cancel the hearing. It will also tell the debtor that they can ask you for travel expenses for getting to the hearing. Be prepared to hear from the debtor about this. The court will tell you if you need to make sure the debtor has the order about the questioning or if the court will do that task. If you need to do it go on to step 5. If the court says they will do it for you, go to step 6. |
Step 5 | The court rules say that the debtor must be handed the order in person. This is called ‘personal service’. This means it cannot be posted or left at the debtor’s address. If the court says you need to arrange this, you can do it yourself or ask for the court bailiff to do it or pay an enforcement agent to do it. This must be done at least 14 days before the date of the hearing. Think about whether it is safe or realistic for you to personally serve the debtor. There is a fee of £131 to ask the court bailiff to serve the order. Remember that if you are on a low income you can ask for help with fees. Each county court has separate contact details for their bailiff team so it is best to check directly with the court. There is no set form to fill in - contact the court to pay the fee and they will tell you what you need to do next. If you decide to personally serve the debtor, be sure to keep some copies of the order for later. If you don’t manage to serve the debtor you need to tell the court at least 7 days before the hearing date so a new hearing date can be arranged and you can have more time to get the order to the debtor. |
Step 6 | The court needs to know certain things before the hearing: - that the debtor has been served correctly,
- whether or not the debtor has asked you for travel expenses, and
- if the money owed to you, or some of it, still needs to be paid.
You need to provide the court with a sworn statement, called an ‘affidavit’ about these things. If you served the debtor yourself with the order you need to tell the court how and when you did this. If you arranged for someone else to serve the debtor, they need to do an affidavit to say how and when they served them. Your affidavit also needs to tell the court if you have been asked for travel expenses. The debtor has 7 days to do this after the date they are served with the order. That means you need to wait at least 7 days after the service before you do your affidavit. Finally, your affidavit needs to state what, if anything, has happened with the money owed to you. There is a set form to use to do your affidavit – Read it through carefully first and then fill it out. Do not sign it.form EX550 If you served the debtor you need to attach a copy of the order that you gave the debtor to the affidavit. Do not fill out part A if you arranged for an enforcement agent or court bailiff to serve the debtor for you. They will fill out their own one. |
Step 7 | When you have filled in your affidavit you need to sign the affidavit and ‘swear’ that the contents are true in front of a court officer. To do this you need to go to your local court. Call in advance as you may need an appointment. This service is free. Or you can go to a solicitor’s office but they will charge a small fee. |
Step 8 | Make sure your sworn affidavit reaches the court at least two days before the hearing date. Make sure you send it to the court that is dealing with the hearing. Mark your letter or email with the date and time of the hearing. The hearing will take place on the date in the order. You do not need to attend unless you want to. The debtor will be questioned and then asked to sign a record of their answers. You will be sent a copy of the answers to the questions and the documents – this is known as the ‘Record of examination’. You will then have the information you need to make a more informed decision on how to enforce the order. |
What happens if the debtor does not attend the hearing
If the debtor does not attend or attends the hearing but refuses to answer any questions as required there are further steps to go through. The judge will look at what happened and decide if the debtor has failed to comply with the order. If the judge orders that the debtor hasn’t complied the judge will make something called a ‘suspended committal order’. This is an order that means if the debtor does not attend another hearing and do as they are ordered, they will be sent or ‘committed’ to prison.
Again, this order has to be personally served on the debtor and you will need to do another affidavit. If this happens, you need to go back to step 5 above. If the debtor fails to attend again – on the new hearing date – then the debtor will be arrested and taken to court. If at that point they engage with the court and answer the questions, it is unlikely they will be sent to prison. If they still refuse to, an order called a ‘warrant of committal’ will normally be issued immediately. This means that the debtor will be taken to the prison for the time detailed in suspended committed order.
Next steps
If the debtor is insured or has enough assets to pay, you can go on to the next section where we talk about the different types of enforcement options.
If you have looked into it and it seems as though the debtor does not have enough assets you may decide to do nothing, knowing that you have considered your options carefully and this is the best course of action for you.