Enforcement of Judgements ( 4.32.0.L7 )
Who enforces the Court Order
1. The Act of Court obtained following a Court judgement is available two days after the hearing. The Act is taken, or posted to the Viscount's Department together with a £30 Treasury Stamp and covering letter - an example follows this item. Payment may still be made direct to the creditor for about ten days until the Viscount's Department take action.
Types of enforcement
2. Restraint on wages - also known as 'attachment of wages'.
Where the debtor is in work, judgement will often be given for restraint on wages. Currently the maximum amount £80, but this is variable depending upon other orders in place and the person's circumstances. Income Tax debts may require restraint on wages much greater than £80 depending on ability to pay.
3. A notice requiring the employer to deduct the set amount from the debtor's wages and pay it to the Viscount's Office is sent or delivered to the employer who must comply with the order.
4. Distraint of Assets - where the debtor is unemployed or self-employed and fails to pay her/his creditor following a Judgement within ten days, the Viscount's Office will be asked to enforce payment by the Sale of Goods following distraint.
5. The Enforcement Officer's first visit to the debtor will include an inventory of assets, a copy of which is left with the debtor. The debtor will be asked to confirm, with proof if need be, those items that do not belong to her/him. (This might include goods on hire purchase, but not those bought with a loan, where ownership passes to the purchaser automatically). The Enforcement Officer must leave those possessions necessary to normal daily life, eg clothing, table and chairs, cooking equipment and tools required for employment.
6. The debtor may wish to be legally advised at this stage to ascertain that only goods of sufficient value to cover the debt are distrained.
7. The goods will then be sold at auction by the Viscount to realise cash for the creditor.
NB: If the debt is owed to a LANDLORD for past rent, s/he is legally entitled to take anything on the premises with the statutory exception of appliances supplied and owned by the utilities ie gas, electricity or telephone.
8. Peine de Prison - a creditor may ask the Court for debtor, who is suspected of trying to escape payment, to be put in prison until payment is made.
9. When a series of judgements have been given against a debtor, the Court Orders are given preference in chronological order, ie the first creditor to get judgement will be the first to receive payment. However, the Viscount's Office will suggest that the debtor approaches the creditors directly and agrees with them the payment of a lower sum to each - ie a repayment scheme. If such an arrangement is made, and debtor defaults, then the Viscount could continue with distraint of assets as seen fit. All Petty Debt Court judgements rank equally until a Royal Court judgement is obtained. After that any new judgements will not be met until all previous judgements are settled in full.
10. Costs are awarded to the plaintiff if requested, and as the Court sees fit. There are the Court's standard costs which can be applied, plus the Viscount's fees, according to a scale laid down in the First Schedule to the Stamp duties and Fees Law 1998, as amended with effect from 3rd May 2005. The standard fee for a straight forward enforcement of a judgement is £30. The discretionary maximum amount chargeable for an unsuccessful attempt at enforcement of a judgement debt is £200. 'Taxed costs' represent the plaintiff's actual costs incurred, ie lawyer's fees, however the scale reflects only approximately 50% of actual legal fees, so the person awarded taxed costs still has additional costs to pay. See also para 11.
Payment to the creditor's lawyer 'Judgement returned to the lawyer'
11. Many legal firms have debt collection departments who take on the duty of recovering payment from debtors on behalf of their clients. The firm will receive the Court Order, and pursue the debtor for payment, independent of the Viscount. They will add their own charges to the amount of the debt recovered, as would the Viscount. Payment can often be made in instalments by arrangement.
Enforcement of orders from the UK
12. The Royal Court will uphold English County Court judgements against Island individuals and businesses when creditors successfully apply to the High Court to have the judgement enforced.
13. County Court judgements must have been registered in the High Court, in order to be enforceable in Jersey, through the Royal Court.
Period of validity of judgements
15. If the Viscount does not succeed in enforcing the judgement, the Act will be returned to the creditor by post together with a report. The Act remains valid for ten years from its date, and the client can re-submit it to the Viscount at any time in that period for further attempts at enforcement, on payment of an additional fee.
What happens if the Viscount succeeds in collecting debt
16. If the Viscount does succeed, the client will be telephoned with the result and will be told how much s/he has to take or post to the Viscount's Department in additional Treasury Stamps - the cost of those stamps (as well as the original £30) will normally have been recovered from the debtor by the Viscount, so the client will not be out of pocket. On receipt of the additional stamps, the Viscount will give or send the client a cheque.
Sample letter to the Viscount
17. After the client has obtained judgement s/he must collect the Act of Court from the Petty Debts Court Greffe. (Allowing 48 hours for preparation). The Viscount Deparatment will then attempt to enforce the Judgement for you. The client must take, or post, the original Act of the Petty Debts Court, to the Viscount together with a £30 Treasury Stamp and a letter, along these lines:
I enclose herewith an Act of the Petty Debts Court dated [state date] and request that you attempt to enforce it against the debtor by making a distraint upon [his/her/their/its] assets [and/or making an arrest on wages].
The debtor is:
I enclose a £30 Treasury Stamp.
18. These records are held at the Viscount's Department but are only disclosed to those directly involved, the debtor, creditor or her/his Advocate. Requests for information in circumstances of Désastre are only fulfilled with the permission of the individual concerned.
Enforcement of maintenance payments
19. At present an applicant seeking to enforce the payment of maintenance must sue the other party and obtain a judgement, when the Viscount's Department can try to recover the arrears. The Viscount's Department cannot enforce a maintenance order unless there has been a Court judgement, however they have discretion to attempt to recover payments on behalf of the applicant in some circumstances. The maintenance Orders (Enforcement)(Jersey) Law 1999 makes it possible for an applicant denied payment to apply for an ordre provisoire and gain an immediate arrest on the defaulter's wages. (This, however, is of little use where the defaulter is unemployed or self-employed). The Court decides on the amount to be restrained based on the applicant's request for the repayment of arrears and re-instatement of the regular maintenance payments. There is no limit to the amount the Court can grant, but the decision would be based on the Defendant's earnings and ability to pay.
Dégrèvement (Disencumberment of Security)
20. For information on Dégrèvement please click here