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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.

Categories
Debt Problems | Bankruptcy

10 Methods of Enforcing a Judgment in Ireland

enforcing judgment

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

  1. Judgment mortgage
  2. Execution orders
  3. Attachment and committal
  4. Garnishee order (attachment of debts)
  5. Appointment of  a receiver
  6. Charging order over shares
  7. Order for possession and delivery up
  8. Sequestration
  9. Charging a partner’s interest.
  10. Bankruptcy

Judgment mortgage

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

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.

Sequestration

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

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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