Execution and Enforcement of Judgments in the District Court

execution of judgments

Have you obtained a Court judgment but don’t know what to do next?

How to execute and enforce a judgment is set out in Order 51 and 51A of the District Court Rules.

Judgments remain in full force and effect for twelve years from the date on which they were given or made. However, no judgment may be executed after six years from the date on which it was given or made without permission of the Court.

An application for permission to execute after six years must be made by notice of motion, which must be served on the person sought to be made liable.

If, at any time during the period of twelve years for which a judgment remains in force, a change takes place, by death, or otherwise, in the parties, you may apply to the Court on notice served on the other party to have the judgment amended accordingly.

If a judgment is given or made against two or more respondents jointly, the judgment or order may be enforced by warrant or otherwise against any of the respondents as if the order had been made against that respondent separately.

Execution against partners

Where a judgment or order is against a firm, execution may issue:

(a) against any property of the partnership within the State;

(b) against any person who has appeared as a party and has failed to deliver a defence, or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner.

If you have obtained judgment and claim to be entitled to issue execution against any other person as being a member of the firm, you may apply to the Court on notice to that other person for permission to do so.

The Court may give permission to issue execution if the liability is not disputed. If the liability is disputed, the Court may order that the liability be tried and determined in any manner in which any issue or question in any action may be tried and determined.

A warrant addressed to a County Registrar may be executed by another County Registrar if the person against whom the warrant has been issued has goods within the county for which that other County Registrar acts.

SEIZURE OF GOODS IN SATISFACTION OF JUDGMENT FOR MONEY OR COSTS

Execution by County Registrar

Judgments for the recovery of money or judgments or orders for costs require all Sheriffs and County Registrars to take in execution the goods of the respondent or of the claimant, as appropriate, to satisfy the debt, costs, value-added tax, expenses, and interest on the debt, as the case may be.

A warrant for signature by the County Registrar authorising execution may be added to every judgment for the recovery of money or judgment.

Warrants authorising execution of judgments for the recovery of money or judgments or orders for costs and warrants for the recovery of rates must be addressed for execution to:

(a) the County Registrar for the county in which the Court area is situated; or

(b) where the Court area comprises portion of two or more counties, to the County Registrar of that county comprising the portion of the Court area in which the person against whom the judgment or order was made resides or carries on any profession, business, or occupation.

Execution of warrants

Where a warrant is for the payment of money and goods are seized under the warrant the person to whom the warrant is addressed may sell the goods by auction within the period fixed by the warrant or, if no period is so fixed, within one month from the day on which the goods were seized, unless the sum for which the warrant was issued and the expenses of taking and keeping the goods are paid before the goods are sold.

However, the Court may from time to time extend the period fixed by the warrant for sale by auction of goods seized.

Where goods are sold the surplus, if any, after retaining:

(a) the amount to be levied; and

(b) all reasonable expenses actually incurred in auctioning the goods; and

(c) the expenses of taking and keeping the goods,

must be paid to the person from whom the goods were seized.

Where the person against whom a warrant is issued pays the amount to be levied by the warrant, the person responsible for the execution of the warrant must refrain from executing the warrant.

Warrant to seize goods

Where the Court has given judgment for a sum of money or made an order for the payment of a sum of money for costs, a Clerk may release a warrant to seize goods of the person against who the judgment or order has been made for the purpose of satisfying the judgment debt where:

(a) any Act under which the judgment was given or order was made either specifies no method of enforcement of the order or provides for enforcement by distress, and

(b) either—

(i) the time for appealing against the judgment or order has expired and no appeal has been brought, or

(ii) an appeal has been dismissed and the Circuit Court has not issued execution.

Issue of a warrant

A warrant is issued when the warrant is signed by the Judge and issued by the Clerk to the person requesting its issue.

A warrant is valid for the purpose of execution for one year after the day it is issued.

However, the Court may from time to time extend the period of the validity of the warrant for the purpose of execution. This extension, though, cannot be made after the time period of the warrant has expired.

WARRANTS OF DELIVERY

If an order is made by the Court—

(a) for delivery of goods; or

(b) for delivery of goods or recovery of their assessed value—

a Clerk may issue a warrant of delivery.

ENFORCEMENT UNDER THE ENFORCEMENT OF COURT ORDERS ACTS 1926 TO 2009

Proceedings for the enforcement of a judgment under the Enforcement of Court Orders Acts 1926 to 2009 may be brought, heard and determined at any sitting of the Court for the Court area in which the debtor is ordinarily resident.

Summons for attendance of debtor and statutory declaration

When a debt is due on foot of a judgment of a competent court and the creditor requires the attendance of the debtor before the Court for examination as to the debtor’s means you proceed as follows.

You  lodge with the Clerk in duplicate for issue a summons in the Form 51A.01 Schedule C and the statutory declaration (in the Form 51A.03 Schedule C, modified as appropriate) required by section 15(2) of the 1926 Act.

The Clerk must enter a return date on the summons and list the matter for hearing.

You must serve the summons on the debtor at least 14 days or, if service is by registered post, at least 21 days, before the return date.

File the original of the summons, and a statutory declaration of service of the summons, with the Clerk at least four days before the return date.

Statement of means

The summons, in addition to requiring the attendance of the debtor in Court on the return date for examination as to his or her means, also requires the debtor to complete and file with the Clerk not less than one week before the return date a statement of means (Form 51A.02 Schedule C) attached to the summons.

Creditor’s proofs

At the examination the creditor or creditor’s solicitor must produce to the Court:

(a) the judgment on which the creditor relies or other evidence of the original debt due to the creditor under the judgment,

(b) a certificate in the Form 51A.04 Schedule C signed by the creditor or creditor’s solicitor setting out the amount outstanding at the date of the certificate, and

(c) evidence that the debtor is ordinarily resident in the Court area in which the examination is taking place.

Instalment order

An instalment order may be served on the debtor.

An instalment order continues in force until the expiration of 12 years from the date of the judgment to which it relates, unless the debt and costs payable have been duly paid in full.

Variation of an instalment order

Where a person wishes to apply to the Court under section 5 of the 1940 Act to vary the terms of an instalment order, that person must apply to the Clerk for the issue of a summons in the Form 51A.05, Schedule C, modified as appropriate.

 Failure to comply with an instalment order

If the debtor fails to comply with an instalment order the creditor can apply for a summons  in the Form 51A.06, Schedule C, modified as appropriate and a statutory declaration (in the Form 51A.03 Schedule C, modified as appropriate).

The Clerk must enter a return date on the summons and list the matter for hearing.

The creditor must serve the summons on the debtor.

This summons must be served personally on the debtor (unless the Court directs service otherwise) at least 14 days before the return date of the summons.

The original of the summons, and a statutory declaration of service of the summons, must be filed with the Clerk at least four days before the return date.

Where the Court requests the creditor and the debtor to seek resolution by mediation within such period as the Court may specify, the Court must adjourn the proceeding generally with liberty to re-enter it.

Where the creditor wishes to re-enter the proceeding, he or she must apply in writing to the Clerk for re-entry, certifying in that application that mediation has failed to achieve a resolution.

The Clerk must re-list the proceeding for hearing and must send notice of the re-listing to the debtor, to any solicitor who appeared for the debtor on the initial hearing of the summons, and to the creditor by ordinary post.

Where the Court, being satisfied that (i) the instalment order was duly served on the debtor and (ii) the debtor has failed to comply with the instalment order, is also satisfied, beyond reasonable doubt, on the evidence presented, that the creditor has established that—

(a) the failure to pay the sum in respect of which the debtor has made default is not due to the debtor’s mere inability to pay but is due to his or her wilful refusal or culpable neglect, and

(b) the debtor has no goods which could be taken in execution under any process of the Court by which the judgment, order or decree for the debt was given,

and the Court makes an order under section 6(7)(c) or section 6(7)(d) of the 1940 Act, that order must be in the Form 51A.07 or 51A.08, Schedule C, as appropriate.

A warrant to enforce an order for arrest and imprisonment pursuant to section 6(7) of the 1940 Act must be in the Form 51A.09 Schedule C and may be added to the form of an order under section 6(7)(c) or section 6(7)(d)of the 1940 Act.

Where:

(a) a notice of appeal against an order for arrest and imprisonment under section 6(7) of the 1940 Act has been lodged; and

(b) a recognisance (if required) has been entered into; and

(c) the warrant to enforce the order has not been issued,

the warrant must not be issued until the appeal has been decided or the appellant has failed to perform the conditions of the recognisance, as the case may be.

Clerk to secure return of warrant where amount due is paid to him or her

Where a warrant to enforce an order for arrest and imprisonment under section 6(7) of the 1940 Act has been issued but not executed and the amount of the arrears of instalments and costs specified in the order is paid to the Clerk, the Clerk must forthwith:

(a) notify the Superintendent of the Garda Síochána to whom the warrant was addressed that payment has been made; and

(b) request the Superintendent to return the warrant for cancellation by the Court.

Registration of judgments of the Court

Any judgment or order for costs issued or made by the Court providing for the payment of a sum of money may be registered (under section 25 of the Courts Act 1981) in the Central Office of the High Court in the like manner as a judgment of the High Court may be registered in that Office.

Enforcement of PIAB orders to pay and judgments of EU courts

The procedures above which relate to the enforcement of any judgment of a court apply to any order to pay issued by the Personal Injuries Assessment Board and to a judgment or other instrument issued by a court in a Member State of the European Union other than the State.

Commercial Borrowing and Lending-Some Important Issues

Commercial borrowing and lending can be a trap for the unwary lender….and borrower.

commercial borrowing

The issues that arise can lead to borrowers and lenders losing out on what they perceive to be a technicality.

An individual borrower’s powers

An individual can borrow what he pleases and the only issues surrounding this revolve around 3 questions

1. Is the borrower 18 or over?
2. Is the borrower of sound mind?
3. Is the borrower a bankrupt?

For example many small businesses involved families living over pubs or shops.

However the Family Home Protection Act 1976 provides safeguards for the Family Home and if the lender in lending money to a borrower fails to divide out the family home from the business property then the security that the lender thinks it is obtaining may not be effective.

A number of issues which arise from an individual borrowing money arise in the whole area of consumer legislation.

Essentially the Consumer Credit Act, 1995 and the European regulations in 1995 dealing with Unfair terms in Consumer Contracts place fairly onerous obligations on lenders and there is the possibility that if the lending institution gets any of the procedural or substantive safeguards wrong then the security that the bank thinks they are obtaining may not be effective.

Partnership

Unlike a company a partnership does not have a separate legal personality so any issue surrounding the capacity of a partnership to engage in commercial borrowing really falls back on the capacity of the individual partner and this can be ascertained by looking at the partnership deed if there is one (if there is no partnership agreement drawn up then the Partnership Act, 1890 will apply).

Companies

A company is a separate legal entity but is an artificial one to some extent so the ability of the company engage in commercial borrowing depends on

1.The company still being in existence ie not having been struck off
2.Not being in receivership, liquidation or under the protection of the court.

It is interesting to note that if a company adopts the standard Table A articles of association and section 79 has not been excluded from it, then the powers of the directors to borrow on behalf of the company is ineffective.

Section 79 says that a company can only borrow an amount equal to the nominal value of the issued share capital unless the company in a general meeting authorises a higher amount. This can be of enormous significance if the legal team advising the bank overlook this point when granting loans to companies.

Security

A bank will usually take either a fixed charge (on a property) or a floating charge (on stock or debtors or assets that change)

A fixed charge has preference over a floating charge and preferential creditors such as employees and the Revenue Commissioners. But the latter have preference over a floating charge in a wind up situation.

Types of commercial borrowing

Overdraft-normally repayable on demand

Term loan-repayable by negotiated amounts over a period of time
Revolving credit-these are loans which are (were!) popular with property developers allowing for the rolling over of the amount borrowed after 6 months depending on how sales of the development were going.

Factoring-this is essentially the sale of the book debtors of the company to the bank who then gather in the debtors and charge their client a percentage for having provided the finance up front for the book debtors

Leasing-legally the leased property remains the property of the lender although in practical terms the borrower has the use and enjoyment of the asset

Specific Assets in commercial borrowing

Property

This is usually secured by a fixed charge of the property and the company must have the powers in the memorandum and articles of association to mortgage land/property.

Stock

Stock is usually secured by way of a floating charge.

Plant/machinery

Can be secured by both floating and fixed charge depending on the value of the plant.

Debtors/cash

These can be secured by a floating or fixed charge and it has been held in the UK that it is possible for a bank to obtain a charge over the credit balance of a borrower with itself.

Guarantees/Indemnities

When a borrower is involved in commercial borrowing he must be aware of the difference between an indemnity and a guarantee.

A guarantee must be in writing whilst an indemnity need not be. The person giving the indemnity is primarily responsible for the debt whereas with a guarantee the guarantor is secondarily responsible after the borrower who is the first port of call if the loan goes wrong.

A guarantee will normally contain a clause preventing the guarantor from protecting himself by taking security from the borrower. The guarantee will also make provision for the money be repayable on demand which protects the bank from losing out by the running of the Statute of Limitations, 1957 which otherwise might prevent the bank from pursuing the debtor.

As outlined above a company must have the powers to execute a guarantee in it’s memorandum of association.

In a partnership a partner has no implied authority to bind the partnership in commercial borrowing unless it is expressly stated in the partnership deed so the lender will be anxious to get all partners to sign any guarantee.

Post Borrowing

Assuming that a company has the power to borrow and regulation 79 of Table A of the Articles of Association has been excluded then details of the borrowing and charge must be registered with CRO and the Registrar of Companies within 21 days of the creation of the charge.

This time may be extended with an application to court but if the charge becomes void as a result of the charge not being registered within time then the borrowing becomes payable and the lender may sue immediately for recovery of the sum.

Financial assistance re purchase of a company’s own shares

Section 60 of the Companies Act 1963 prohibits the provision of financial assistance for the purchase of shares in the company providing the assistance by anybody. This is to prevent asset stripping and the reduction of the share capital of the company.

However there is a procedure called the ‘whitewash procedure’ which allows certain exemptions which are set out in section 60(2-11).

The effect of this assistance being provided without this procedure is that the transaction is voidable at the choice of the company against any person who knew of the facts which cause the breach.

Conclusion

For many small business owners, the whole area of commercial borrowing is one that now, in 2009, should have been, with hindsight, treated with far more caution. As for the banks attitude to commercial borrowing….unfolding events will show how badly they got it wrong in the whole area of commercial borrowing and lending.