Enforcement Applications
Any person entitled to enforce a Judgment may apply to enforce it in a prescribed form. The notice gives the debtor 10 days to pay the sum due.
The notice of intention plus the Judgment is lodged with the EJO. A fee must be paid. It is registered on receipt.
The form gives advice to the debtor regarding the implications of the notice. It informs the debtor that if it defaults on complying with the payment, certain remedies will fall, and the costs may be expensive, and enforcement may follow.
If the debtor cannot pay immediately, the recommended note advises him to get in touch with the particular creditor, give particulars of means and proposals for payment. If there are other debts, the note will advise the availability of an Administration Order for dealing with debt.
If the respondent fails to settle within 10 days, the applicant may make a preliminary Application. The Application for enforcement is in different forms for money and non-Judgments.
The EJO requests to provide such of the following information as the applicant has. The Application must include details of whether the debt was incurred by way of business, whether the debtor is employed, self-employed, names and addresses of the bank, address of land in which he has an interest, particulars of any sizable property, any other information as to the defendant’s means of which the applicant is aware.
Application Orders are lodged on a first-come, first-served basis. Where more than one is enforced, the earlier one is enforced before later enforcement is commenced.
Once an Application is made, the EJO may issue a custody warrant dealing with property specified to be under its control. This allows the EJO to take the goods. It may sue for conversion. The custody warrant is served with the enforcement when the enforcement Application is accepted or promptly afterwards. It should be personally served by the EJO.
All goods on the premises occupied by the debtor, except those exempted by warrant or rules, under the control of the debtor or the joint control of the debtor and his spouse on any premises occupied by the debtor or in any other place provided they are under the sole control of the debtor or under the joint control of debtor and his spouse or any of his dependents are deemed to be in the custody and possession of the EJO. There are exceptions for certain household equipment, furniture, bedding, tools of trade, perishable goods, goods in the ordinary course of business.
When the EJO serves a custody warrant, they also serve a list of goods which are liable to be seized under the Order and label or otherwise identify them as a safeguard against disposal. The custody Order warrant is discharged on payment of the amount recovered on the Judgment.
The EJO has a general discretion to discharge. Goods cannot be disposed of without the consent of the EJO and requirements for the deposit of a sum of money representing their value. It is an offence to interfere with the goods.
The EJO may stay enforcement of a Judgment either before or after Applications have been made. The Master may grant a stay where he is satisfied there are special circumstances so justifying, it is inexpedient to enforce a Judgment or the Judgment debtor is unable for any cause to pay the amount due.
Special circumstances include when the debtor intends to apply to Court to have a Judgment set aside and/or revised. The EJO stays where it receives notice of an Application to commit for contempt.
The next stage in proceedings after service of the custody warrant is the discovery of information about means. The EJO initiates and conducts the examination. The creditor is entitled to be present and put questions. After service of the custody warrant, the Judgment debtor should give the enforcement officer such information as deemed may be required.
A debtor may be interviewed by an enforcement officer or summonsed for examination. Summons is the more common course. Details of any interview must be recorded in writing.
Generally, the EJO will visit the debtor to get an impression of lifestyle and accuracy of information. An alternative to a visit is an oral summons for examination as to means. This may be in an EJO office or in a courthouse outside of Belfast. The examination can proceed by oath.
Where the debtor fails without reasonable excuse to attend a warrant for arrest for the purpose of examination may issue. A company can be examined through its directors or agents.
Once the EJO has the notes or orders from the examination of the debtor, it decides what, if any, Enforcement Orders, are to be made. The applicant for enforcement cannot require any particular method to be used. The EJO makes a provisional decision. Parties are notified and given time to make objections. An Enforcement Order may be issued, notice of enforceability or refer the matter to the Master.
The Master may similarly make an Enforcement Order, stay of enforcement, notice of enforceability, or discharge or vary and Enforcement Order. A copy of the Enforcement Order reports is sent to the applicant.This gives the applicant the opportunity to consider the possible success of the enforcement or other insolvencies, institutions, or other Applications for a specific Order should be made.
A certificate of unenforceability is a ground for bankruptcy proceeding. A certificate of unenforceability prevents further action being taken. A certificate of unenforceability is published in the Belfast Gazette. An application can be made to set aside a certificate of unenforceability.
Where it appears that a person has the means to pay a Judgment in installments, an Instalment Order may be made for payment of the whole or part. This becomes effective after being served unless either party objects. If they object, the matter is listed before the master.
Most Instalment Orders provide for payment to the creditor. The EJO must be notified. A debtor who makes default in payment in installments may be committed for up to six weeks where it is shown that he had the means to pay.
Where a debtor has regular income, an alternative is an Attachment of Earnings Order (“AEO”). This is directed at the employer.
An AEO may be made upon the Application of the creditor. A provisional AEO is made and served on the debtor. Grounds of objection must be made within a certain period or the Order becomes final. If disputed, the matter is referred to the Master.
The debtor may be obliged to produce particulars of his earnings, anticipated earnings, resources, and means. Employers may be directed to provide statements. The AEO specifies the amounts deducted and is delivered to the employer.
The AEO requires the employer to make deductions from the salary. Provision is made for protected earnings, which should not leave the debtor with less than the amount required to support themselves.
An AEO can be discharged, lapsed, or varied. The creditor or debtor may apply for variation. The Order lapses once the debtor leaves employment.