Enforcing a Small Claim
A Judgment Explained
When the Court awards a judgment it sends out a notice to the Claimant detailing the terms of the judgment. The Defendant receives a similar document ordering him to pay the awarded sum to the Claimant. In many cases the Defendant fails to pay the awarded sum. The Claimant must then decide how to enforce the judgment and collect the awarded sum.
The enforcement methods are listed below.
A Warrant of Execution
A Warrant of Execution enables the court bailiffs to seize goods from the Defendant. They will try to collect the cash award but if this is not possible they can take goods to the value of the cash award.
Bailiffs can be refused entry to premises and cannot remove essential items or tradesman's tools.
There is an upper limit for Warrants of Execution of £5,000.00 only.
Attachment of Earnings Order
An Attachment of Earnings Order is sent to the Defendant's employer. It instructs the employer to deduct an amount from the Defendant's earnings each pay day and send it to the Central Attachment of Earnings Payment System (CAPS) in Northampton who will be responsible for collecting the payments. If there are other Attachment of Earnings Orders in force your order may be joined to make a Consolidated Order.
If the Defendant has very low earnings the court may not grant such an order.
Charging Order
A Charging Order prevents the Defendant from selling his land or property without first paying you. As such orders are registered with the land Registry they can be
complicated and certainly require the services of a solicitor.
It is worth remembering that you will not get your money until the Defendant sells his/her property.
Third Party Debt Order (Previously called a Garnishee Order)
A Third Party Debt Order can be one of the most effective ways of enforcing a judgment. The order freezes the Defendant's bank account until such time as you are paid
in full. The order is flexible as it can also be sent to anyone who in turn owes the Defendant any money.
It is - of course - necessary to know the name and address of the Defendant's bank or building society.
When the order is issued by the court it will contain a date for the hearing. It is essential that you attend at the hearing otherwise the order can be dismissed. The risk of
this type of order is that there may be no money in the bank account or that the account may be overdrawn. In these instances the court fee and attendance time and
costs are clearly wasted.
The bank have a duty to provide information to the court and if they fail to do so can be held in contempt of court.
Bankruptcy or Company Winding Up Petition
To issue a Bankruptcy Petition against the Defendant can be a very effective way of forcing him to pay you. However, the costs are high and there is always the risk that
he will gladly allow the petition to succeed and walk away leaving you with another bill.
A Company Winding Up Petition carries the same advantages and risks as a Bankruptcy Petition. However, a search at Companies House will provide information as to the
company assets which if substantial makes a Winding Up Petition viable.
Order to Obtain Information (Previously called an Oral Examination)
An Order to Obtain Information (OOI) is not strictly an enforcement option. It is a way of establishing how much cash a Defendant (called the Judgment Debtor) has or
what assets are in the Judgment Debtor's ownership. The OOI is a very good way of identifying which enforcement option is most appropriate.
The process has two different tracks. If Judgment Debtor is an individual the procedure is straightforward and a court bailiff will serve a notice personally to the Judgment
Debtor requiring him/her to attend at court for questioning. The Judgment Debtor will be required to provide information on oath and produce supporting documentation about:
Wages/salary supported with pay slips.
Bank accounts supported with statements.
Building Society accounts supported with passbooks/statements.
Stocks and shares.
Outgoings including: rent, mortgage payments, hire purchase, court orders, utility bills and any other bills.
If the Judgment Debtor is a business/company one of the officers of the company should attend for questioning. Importantly, you will need to obtain the home address of the
company officer. He/she will need to provide:
2 years' accounts.
Current management accounts.
Outstanding bills etc.
The Judgment Debtor (or officer) will then be ordered to attend court on a certain date and to bring the above documents in respect of his/her finances. An officer of the
court will interview the Judgment Debtor (or officer) to establish his/her financial situation and the Claimant will usually have the option to present questions to the Defendant
who must take an oath confirming that the answers are true.
If the Judgment Debtor (or officer) fails to attend, the court will reschedule the hearing for a new date. At the same time the court will issue a suspended committal order in
the name of the Judgment Debtor (or officer). This means that if the Judgment Debtor (or officer) fails to attend for the new hearing date he/she will be arrested and
taken before a judge. Provided that the Judgment Debtor (or officer) agrees to be questioned there and then the committal order will be suspended. Otherwise the Judgment
Debtor (or officer) will be committed to prison.
Because there is the risk that the Judgment Debtor (or officer) could be committed to prison the the order to attend for questioning must be handed personally to the
Judgment Debtor (or officer). You may need to serve this yourself by physically handing the document to the Judgment Debtor (or officer) and completing and swearing an
affidavit stating where and when service took place. Alternatively you can use the services of a process server who will effect service on your behalf. A fee is required for
this service.
Small Claim forms 2012 (downloads)
- Making a small claim? Some questions to ask yourself
- How to make a claim
- Debt recovery for businesses
Stage 2: The defendant's response
- A claim has been made against me - What should I do?
- No reply to my claim form - what should I do?
- The defendant disputes all or part of my claim
- The defendant admits my claim - I claimed a fixed amount of money
- The defendant admits my claim - I did not claim a fixed amount of money
- The small claims track
- The fast track and the multi track
If you have delayed issuing proceedings for any reason, you may wish to seek legal advice before issuing your small claim.
{Please note the above forms are copyrighted to HMCS}
- Need small claims forms for Scotland? see Small Claims Forms
- Need free legal advice from your CAB see Citizens Advice Bureaux