Member Article

Congratulations! You won your case in court and all the expense and hard work of the past few months, or years (not to mention the broken business relationships and sleepless nights along the way) might just have been worth it to experience this moment of jubilation.

But sometimes obtaining the judgment is not the end of the story, because what happens if your opponent does not satisfy the judgment? This can happen where your opponent is a relatively large business or a high net worth individual and the judgment debt runs into several hundred thousand or even millions of pounds. For example, our team has successfully enforced high value judgments against professional footballers, both within the jurisdiction and overseas.

Unfortunately, the answer is that the court will not help you. It is up to you, as a judgment creditor, to commence enforcement proceedings against your opponent – at additional expense (over and above that which you have already incurred in obtaining the judgment, although you may be able to add the costs of enforcement to the judgment debt (1)).

In England & Wales(2) there are several different types of enforcement process available, and the good news is that with a commercial judgment, there is in principle nothing to stop you using more than one process at once, so as to optimise your chances of achieving a recovery as soon as possible. They may include (this is not an exhaustive list):

• Post-Judgment Freezing Order – prevents your opponent from dissipating his assets (subject to satisfying the requirements for an injunction, which include, amongst other things, demonstrating to the court that there is an imminent prospect that your opponent will dissipate) 
• Charging Order – enables you to register a charge over your opponent’s real property or shares to the value of the judgment debt
• Order for Sale – enables you to compel your opponent to sell the property you have charged, so as to realise funds with which to satisfy the judgment debt
• Third Party Debt Order – enables you to obtain funds from a third party who owes your opponent money, so that the third party satisfies the judgment debt on your opponent’s behalf
• Writ and Warrant of Control – enables you (with the assistance of High Court Enforcement Officers or a duly authorised enforcement agent) to seize goods(3) to the value of the judgment debt, with a view to realise funds by selling them at auction.

Knowing which combination of enforcement processes is most likely to yield the best result is an under-utilised weapon in the civil litigator’s armoury, but practice makes perfect. In our team we are not only familiar with the processes, but we are used to deploying them to lethal effect in the battlefield of asset recovery. One key part of our offering is the early appointment of tried and tested, highly specialised enquiry agents, who will investigate your opponent thoroughly.

From the outset of litigation, your lawyers should consider carefully whether your opponent is able to satisfy the judgment you are seeking and keep the position under review throughout the court proceedings. Circumstances can of course change, even if your opponent appears to be a reputable business or high net worth individual and if a fresh judgment is not immediately satisfied, it makes sense to send an enquiry agent in to investigate before deciding how best to proceed. It is important that the enquiry agent goes beyond mere database enquiries (looking at things like credit ratings and public records) and – through legitimate means – builds a comprehensive picture of your opponent’s financial affairs.   

In an appropriate case and subject to satisfactory evidence that your opponent has the capability to satisfy the judgment debt, we may consider alternative forms of litigation funding. 

 

Footnotes:

1. The extent to which this is possible depends on the nature of the judgment; ideally you will have a contractual right to recover such costs from your opponent.
2. We also have the capability to enforce your foreign court judgment in England & Wales. Alternatively, we may assist you in enforcing a judgment in other jurisdictions, within the UK or abroad. We may address those topics in a separate article.
3. Such as plant and machinery, warehouse stock or vehicles – subject to provisional expert valuation and appropriate enquiries as to possible third-party rights (e.g. under finance agreements).

 

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