The Law Society Gazette has from time to time reported on the state of enforcement procedures in England and Wales. So, this week 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 a http://bit.ly/2OtUFDFffecting the enforcement of money judgments and of course this gave our CEO, Claire Sandbrook a great opportunity to blog about her findings – so let’s go ….
Under the heading “THE LOW DOWN” (very trendy for the LSG) a point which has been made time and time again by us and by other commentators is 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. We advocate identifying the enforcement process or processes to be engaged when deciding to issue a claim so that the path towards enforcement is always understood. 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 if you have too.
The opportunity to digitize enforcement service delivery is also mentioned in the report – and to that our CEO says, “that old chestnut”. For 20 years she 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 insists they enforce their judgment using bailiffs they cannot talk to, measure or engage with.
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 into this. So where are the bad parts? This in 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 – the claimant comes out of Money Claims Online or Money Claim or a typical county court action. On their request for judgment – digital or paper – it says, “Would you like to appoint an enforcement agent to enforce your judgment”. 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.
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”. If the “No” box is ticked the judgment is allocated on a cab rank to the next enforcement agent on the list. Alongside this process – on a gov.uk website lots of additional information and links can be given.
Now does that seem simple enough?
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