To Enforce or Not to Enforce... That is the Question.

Throughout a litigators time in practice a great deal of the White Book is encountered but it is inevitably the case that some sections are more widely utilised than others. In fact, to be somewhat bold, the reality for most practitioners is that the later parts of the White Book begin to gather dust and are rarely consulted (unless specifically relevant to any individual practitioner) – the writer would ask fellow civil litigators to consider the last time they reviewed CPR Part 87 (as it currently stands) as an extreme example.

The above, whilst jovially intended is to highlight that the same is often true of CPR Part 70 and the associated practice direction. This is often a mix of it being seen as ‘optional’, time consuming, alien, specialist or something seen as an administrative tool left to a trainee Solicitor to occupy their time whilst a training principal attends to more ‘urgent’ matters. This is by no means an exhaustive list and there are many other considerations in play.

Quite often as shown by Practice Direction 70 the methods of enforcement seem pigeonholed by some as ‘debt recovery’ whilst forgetting they can be applied to any judgment order (including Consent Order) obtained in any given set of proceedings:

Some examples:

       1.       Writ of Control (formerly a Writ of Fieri Facias for those who remember);

       2.       Third Party Debt Order;

       3.       Charging Order;

       4.       Attachment of Earnings;

Thankfully the above selection will not be required in all cases but think about those situations where they might be of use (i.e. a security against property by way of agreed notice via a charging order may suit an individual client’s needs).

‘I’ve not got a judgment Order to enforce – what do I do?’

The simple answer here is – GET ONE!

If you have a set of ‘live’ proceedings which have settled by the following means and payment has been unreasonably delayed (the key here is what you might define by ‘unreasonable’) you need to consider your options:

1.       Tomlin Order;

2.       CPR Part 36 compromise;

3.       Some other settlement (i.e. Calderbank);

To take the example of the Tomlin Order you will often find this instrument if used correctly will stay the claim save for liberty to apply for enforcement of agreed terms enshrined in a confidential schedule (often with other terms such as confidentiality clauses and without prejudice elements not suitable for a Judgment Order or what a Court cannot Order). A shrewd drafter might include a clause as follows (or some similar variant of the same):

‘…The Defendant do pay the Claimant’s costs to be subject to assessment in default of agreement and payable within 14 days…’

(Regrettably not all parties to litigation will agree to such a time scale for certainty purposes – this may be through genuine lack of instructions or through fear of committing their client to a timescale which they cannot comply with).

Whilst, as most litigators will be aware, the Tomlin Order cannot be sent to a High Court Enforcement officer (formerly Sheriffs) for ‘transfer-up’ for example as it is not a judgment Order for payment of a sum. The solution to this is that an application can be made to the Court for an Order to enforce the terms contained therein. Unless the Court orders payment forthwith the provisions of CPR.r.40.11 will normally prevail.

The same can be said with reference to a CPR Part 36 offer with reference to CPR.r.36.14 (6):

‘…Unless the parties agree otherwise in writing, where a Part 36 offer that is or includes an offer to pay or accept a single sum of money is accepted, that sum must be paid to the claimant within 14 days…’ [emphasis added]

You might say: What if I don’t have either of the above and the agreement was by other means?

Again, subject to the concept of what is ‘reasonable’ any agreement is a contract and can be enforced through the Courts which will lead to a judgment Order for payment and open the door to CPR.r.PD.70 in the proceedings to which is relates.

Beware of conditional acceptances of any offers but remain alive to the fact that the definition of a reasonable amount of time is subject to opinion where there is a grey area i.e. you say payment in 14 days and the paying party says it is policy to allow 21 or even 28 days. This is arguably not unreasonable and should you allow (or rather acquiesce to) this time to pass then a suitable notice letter to coincide with the expiry of the paying parties terms will provide you, subject to any subsequent case specific updates with the ability to confidently consider progression to an application to the Court.

Depending on the Court and your individual experiences as practitioners, the provisions of CPR.r.23.8 (c) may be of use in terms of considering ex parte applications for the above examples not only through the saving of time, cost and expense but also because there is often little in dispute as a matter of fact i.e. x agrees to pay y £x within 14 days – what more is there to say if a receiving party has been reasonable and the reasons for late payment are either not forthcoming or unreasonable. Do however note that this is entirely up to the discretion of the judiciary and it may well be felt that an ‘on notice’ hearing is appropriate in any given case in which case there will be a hearing to prepare for together with the associated costs – of course should an order be made on an ex parte basis there is provision within the CPR for the affected party to return to the Court within the relevant timescales provided therein to avoid undue prejudice being caused.

Subject to the relevant pre-action steps being taken, should the matter be unissued there is scope for breach of contract in any event for non-payment but it is recommended each case is assessed on its own merits in this instance as proceedings will need to be issued (i.e. consider the remit of your instructions, retainer, funding considerations and costs for example).

Remember that there may be a substantial amount of money in play in some cases which once a judgment order is obtained, subject to section 17 of the Judgments Act 1838 the rate of ‘8 pounds per centum’ will apply if the judgment qualifies (i.e. £5,000 and above in brief).

The bottom line is that whilst each case is judged on its own merits, if you apply a reasonable approach, subject to viability of the paying party against whom judgment is sought to be entered for example (i.e. is the target for enforcement the proverbial ‘man of straw’?), the provisions of CPR.PD.70 may assist to progress a case where there is genuinely no reasonable reason for late payment. Your client is entitled to legitimately progress with enforcement against an unreasonable paying party and subject to the Courts discretion they may award interest (depending on the claim) and the costs of and incidental to any enforcement.

Dust off your White Book at CPR.70 and review your client’s outstanding damages/costs and see if these provisions can assist you and / or your client.

By Nicholas J Browne – Associate Solicitor and Deputy Compliance Officer for Legal Practice

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