Getting a judgment against a debtor is one thing-enforcing it is quite another.
Once you have obtained your judgment against a debtor there are a number of avenues open to you to attempt to enforce that judgment including
- Judgment mortgage
- Execution orders
- Attachment and committal
- Garnishee order (attachment of debts)
- Appointment of a receiver
- Charging order over shares
- Order for possession and delivery up
- Charging a partner’s interest.
If the debtor is a property owner it may be possible to register a judgment mortgage against their property. However you do need to check that there is equity in the property as there may be other creditors ahead of you in the queue.
Read more about judgment mortgages.
Execution orders, also known as “fieri facias” or “fi fa”, is the most common method of enforcement and utilizes sheriffs to attempt to seize goods of the debtor.
You will firstly need to obtain an execution order, either from the High Court or District Court and send it to the Sheriff for execution.
There are 2 independent Sheriffs in Dublin and Cork; in the other counties the County Registrar carries out the functions of a sheriff.
A sheriff has the powers of
- seizure of moveable goods (but not goods on lease or hire purchase)
- right of entry onto premises provided he does so peacefully and believes that there are goods on the premises.
An execution order from the District Court is valid for 6 years; from other Courts the period is 1 year.
If the sheriff is unable to seize goods he will return the execution order and mark it “no goods” or “nulla bona”.
Attachment and committal
It is possible to apply to the District Court to obtain an order for committal of the debtor to prison for failure to comply with an instalment order.
However this whole area has changed since the decision in the Caroline McCann v The Judge of the District Court and others with Monaghan Credit Union Limited case by Ms. Justice Laffoy where Flac challenged the constitutionality of imprisoning a debtor for failure to pay.
The finding of unconstitutionality of section 6 of the Enforcement of Courts Orders Act 1940 has led to a change in the law and basically a debtor is unlikely to be sent to prison now for inability to pay (as opposed to an unwillingness to pay).
Garnishee order (attachment of debts)
If a debtor has monies due and owing to him but has no goods it is possible for a creditor to obtain an order for attachment of debts to have repayment of the debt repaid to him instead of the debtor.
This type of order would cover
- wages due to the debtor
- a credit balance in the debtor’s bank account
- other debts due to the debtor.
Appointment of a receiver
The Circuit or High Court has the power to appoint a receiver over the property of a debtor, selling it and paying the proceeds to the creditor. This method is entirely at the discretion of the Court as it is an equitable remedy.
Charging shares and stocks
This involves getting a charge on government securities or shares registered in the debtor’s name and ordering a transfer of those shares to the creditor.
Order for possession
This order applies where the creditor seeks to recover property other than money or land, for example goods and chattels. This too is an order at the discretion of the Court with no automatic right to the creditor.
This is an order against a person or company who has not complied with an injunction but can also be used to enforce a judgment.
Charging a partner’s interest
This comes about where the debtor is in a partnership and this gives the creditor priority over other creditors of the partnership.
Bankruptcy in Ireland is a “nuclear option” and is expensive for the creditor with an outcome that may not see you enforcing your judgment in a satisfactory manner if recoupment of monies owed is the priority.
There are a number of options under the heading of bankruptcy including a private arrangement under the control of the Court and an arrangement outside the control of the Court.
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