The Law Society Gazette has from time to time reported on the state of enforcement procedures in England and Wales. Back in July 2019 an article appeared to discuss “Overstretched bailiffs and enforcement processes as complex as the original court case are the hallmarks of a civil recovery regime that is not fit for purpose.” (see http://bit.ly/2OtUFDF ) Freelance journalist Marialuisa Taddia reported on a number of issues affecting the enforcement of money judgments. Many of the issues raised in this article have been kicking around for nearly 3 decades and yet the civil justice system has failed to tackle them.
The Impact of Covid
Now in 2021, the impact of the pandemic will be blamed for the backlog of enforcement procedures, and yet there are tens if not hundreds of licensed and capable High Court enforcement agents willing to enforce any judgment over £600 in value, or lower, and any judgment regulated by the Consumer Credit Act. It is a pity that the legislative dexterity shown by the Government to manage the Coronavirus has not been shown when it comes to dealing with this important issue. That lack of appetite to tidy up this area of the administration of justice is going to bite down hard in the weeks and months ahead.
Here our CEO, Claire Sandbrook, herself an Authorised High Court Enforcement Officer, and campaigner for moving the enforcement of civil court judgments forward into a streamlined system comments on this article and the impact reforms could achieve.
Civil Justice Enforcement Statistics
Under the heading “THE LOW DOWN” is a point which has been made time and time again by Shergroup and by other commentators in that it’s a shock for many clients when they find out they have to enforce the judgment that the court just made. According to the report only 60% of awards under £10,000 are fully enforced with a system that is described as “dysfunctional”. This figure appears to come from figures from the Civil Justice Council.
Apparently, in the small claims track, where cases that are worth £10,000 or less are allocated, only about 60% of successful claimants receive the full amount awarded by the court. As reliable data is scarce in the discussion on enforcement of court judgments, we would love to dig into this figure to find out how it is calculated.
The report concludes that whilst civil justice in England and Wales has many strengths – enforcing judgments is not one of them. We are not sure we entirely agree with this. The process to get to the right enforcement process can be complex – but in our opinion, that’s often because the claimant starts out in proceedings without an enforcement strategy. By this, we mean that the ultimate outcome of how to enforce a judgment is not considered until after judgment has been obtained – which we think is too late in the process.
Enforcement Due Diligence
We advocate carrying out a certain amount of due diligence in relation to any enforcement at the time the litigation is first being discussed. Of course, things can throw a claimant off course – but checking key facts and information front end will lead to much more strategic outcomes if the groundwork for enforcement is done pre-claim. The approach works for one-off judgments or judgments flowing from a bulk process such as a utility company, or financial service. Know your debtor, know your contract, know your enforcement strategy – and build your process in line with what assets your opponent has. You may have to engage private investigators or tracing agents to undercover these assets but this is always a good way forward if you are unsure. There is no point in suing a person of straw.
Getting Civil Justice Enforcement Online
Moving to the actual enforcement procedures available to a successful Judgment Creditor, then the opportunity to digitize enforcement service delivery continues to miss actual implementation time and time again.
The great and the good discuss but it never seems to actually happen. For 20 years, Claire Sandbrook has been advocating that the transfer process for CCJs should be reformed so that successful judgment creditors can choose who they want to enforce their judgment. The enforcement market is large, it is regulated, and it is also an artificial barrier to entrants which still routes the majority of county court judgments to county court bailiff departments who are overwhelmed with the amount of work they have on their desks.
In his civil courts' review in 2016, Lord Justice Briggs called enforcement of civil judgments and orders ‘the Achilles heel of the civil courts’. Our CEO told Lord Woolf the same thing when he visited Shergroup’s offices 20 years ago to review the transfer up process then through the Sheriffs Lodgment Centre. But then, as now, enforcement remains like the Curate’s egg – good in parts. We like to concentrate on the good parts – and we think Shergroup adds value to this.
How To Take The Entire Enforcement Process Online
So where are the bad parts? This is our view is where processes are filled with political thinking and artificial barriers such as the 1991 Jurisdiction Order which prevents judgments under £600 and those judgments regulated by the Consumer Credit Act from being transferred to the “enforcement agent of choice”.
We offer the following simple process to be added to the Courts own digital delivery system being Money Claim Online - its this simple |
Step #1 – the claimant enters judgment on Money Claim Online or at the end of a county court process. On their request for judgment – digital or paper – it says, “Would you like to appoint an enforcement agent to enforce your judgment”.
Step #2 - The Judgment Creditor ticks either “Yes/No”. If "No" the judgment is left in abeyance. The Judgment Creditor can decide later on how to enforce the judgment using standard methods of enforcement.
Step #3 - If the box is ticked “Yes”, then the next question should be “Do you have a preferred enforcement agency you would like to use?”. The Judgment Creditor can answer either with the name of the enforcement agent/agency to be used or if not known ticks the box saying “No”.
Step #4 - If the “No” box is ticked the judgment is allocated on a cab rank to the next enforcement agent on the list.
Step #5 - The judgment information is routed to the enforcement agent of choice or by cab-rank through Registry Trust as county court judgments are downloaded to county court bailiffs at the moment.
Business life change in the first quarter of 2020. The presence of the COVID virus has impacted our legal system as it is having on nearly every area of our national life. Inefficiencies before 2020 are now going to be magnified unless urgent action is taken to find the budget and move them forward.
We continue to work to make it easier for court users to find us and engage with us so they can have access to our enforcement agents and customer service but ultimately the job must be done by Government to reform the Jurisdiction Act 1991 (as amended) to allow all judgments to be enforced in the most efficient way possible and now the safest ways.
It is a national disgrace that years of opportunity have been wasted only to find us slamming into a crisis where one set of enforcement professionals want the business, the other set are holding on to it for reasons we are not entirely sure. It is job security, a pensionable income - why is the enforcement of civil court judgments not entirely with the private sector at no cost to the public purse?