Civil Litigation: Enforcement of Judgments

If, at the end of litigation, the applicant has been successful in obtaining a judgment against the respondent, the respondent will usually pay the amount he has been ordered to pay without any further action being necessary. However, this is not always strictly true.

Where the losing party is unable to pay the judgment sum, or is unwilling to pay, despite the consequences, the successful party will have to take steps to enforce the judgment debt. The judgment will not be enforced automatically, and unless the applicant is pro active and takes enforcement action, they are unlikely to recover the monies owed.

There are various factors to consider before making a claim for money owed. The successful party should ensure that, before action is commenced, the respondent party’s whereabouts is satisfactorily ascertained, that they have the means to pay any monies owed and that there are assets available should enforcement become necessary. An Enquiry Agent may be necessary to trace the respondent and the applicant should provide the Agent with as much detail as possible in order for him to make a realistic attempt to trace the respondent. However, one must bear in mind that this can be expensive and it must be ensured that a disproportionate amount of money is not spent trying to trace the respondent, especially if they do not have the means to pay the monies owed.

If the losing party is not insured and does not have the means to pay up, it is unlikely to be a commercially viable option to go after them for monies owed, as the successful party may end up either chasing these monies far in to the future, incurring substantial legal fees as a result, or may end up spending more on the proceedings than the monetary value of the claim itself.

There are a number of enforcement options available to the successful party, once judgment is obtained.  These are as follows:

1. Execution: This is where the losing party’s goods are seized and sold to satisfy the judgment debt.
2. Charging Order: This is where a charge is placed over the losing party’s land or other securities.
3. Third Party Debt Order: This is an order which requires a third party who owes money to the debtor to pay the monies owed directly to the successful party.
4. Attachment of Earnings Order: This is an order which requires the losing party’s employer to make deductions from his earnings and pay them to the successful party direct.

The advisor to the successful party will, on the facts of the case, advise as to what method of enforcement is most appropriate.

However, if the judgment sum is in the region of £750 or more, the successful party may choose to petition for the bankruptcy of the losing party. This cannot be done if a charging order has been put in place, as this poses a Catch 22 situation for the successful party in that if he petitions for bankruptcy but has a charging order in place, he faces giving up his position as a secured creditor in preference of petitioning for bankruptcy of the offending party.

In relation to enforcement of judgments outside the jurisdiction, the successful party must have regard to the rules as set out in the EU, Brussels and Lugano Conventions, in relation to obtaining the relevant certificate of enforcement.

This article courtesy of the litigation team at Darlingtons solicitors in London.

Maternity leave research

Reabur.com has published some very interesting research finding on attitudes of employers relating to maternity leave. Without further ado, here are some of their most interesting findings :-

• Some 65% of employers do not believe employees will return to work after taking maternity leave
• Female employers have a markedly different approach to male employers. 82% of female employers believe the employee will return to work.
• Only just over 40% of employers questioned have a “return to work” policy.
• 16% of employers would prefer it if staff on maternity leave do not return to work
• The reasons employer gave for not wanting the employee to return to work included a perceived reduction in concentration and enthusiasm.

Notwithstanding the Equality Act and all the strides forward made in equality, the clear finding of this survey is that there is still a significant gender gap when it comes to maternity leave.

What do you think ?

More reasons to be careful with facebook and social media

Whilst the English legal system is quite different to the US system, a new ruling in the New York jurisdiction provides a salutary lesson and warning about what could happen under English law when it comes to social media.

These social media issues are becoming increasingly common in legal disputes as regards what is or is not discloseable as part of court proceedings.

In the case in question, the Judge decided that the Claimant’s private Facebook and MySpace postings were discloseable to the defendant in a personal injury action.

The rationale for this decision was based on the fact that public postings on the social media sites cast doubt on the claims and the Judge therefore considered that there may be other relevant material in the private postings showing that the extent of the injuries claimed and effect on loss of amenity was not as severe as claimed.

The whole area of social media and the law is a fascinating and fast developing area with major implications, as regards what is private and what is not. In this country we have the added ingredient of the Human Rights Act. It seems to us that an argument for disclosure of this type of material, which is likely to be tested soon, will inevitably involve arguments about right to privacy and family life under the Human Rights Act.

What do you think ?

What steps are suggested for practical protection on social media risks

• Educate employees about the consequences of disclosing or misusing the company’s confidential information or intellectual property in the social media context.
• An employee’s disclosure or misuse of confidential information or intellectual property could:
  • result in breach of the employment contract;
  • breach the terms of a confidentiality agreement between the company and a third party;
  • compromise intellectual property rights;
  • create embarrassment or confusion among employees or clients;
  • jeopardise legal privilege between the company and its in-house legal counsel

How can we prevent harassment and bullying via social media ?

• Include references to social media in anti-harassment and anti-bullying policies and in any training offered to prevent workplace harassment.
• Make sure the corporate response to harassment (sexual or otherwise) and bullying through social media is consistent with the response to harassment and bullying in other contexts.

In summary

Do:

• Adopt a social media policy to encourage appropriate employee use of social media.
• Use the policy to prohibit employees using social media in ways that could damage the company.
• Provide training to employees on the appropriate use of social media, and monitor for compliance.

Do not:

• Allow employees to disclose or misuse confidential or proprietary information.
• Permit employees to use social media to harass colleagues.
• Impose unnecessary restrictions on employee use of social media.

Those of you who even know who George Groves is (a boxer) might be asking what on earth this guy has got to do with commercial law …..

No, I’m not posing some kind of MENSA like teaser, it’s quite straightforward. Like some of you may have been, I was listening to radio commentary of a big UK boxing match, billed as a genuine “grudge match”, last night, between the aforementioned George Groves and James de Gayle.

Whilst Groves is a class act and unbeaten, few backed him to beat De Gayle who is reigning olympic boxing champion and also unbeaten. Groves won, on a split decision.

The reason he won, as he himself stated in an interview was significantly due to the quality of his “team”. He is trained by Adam Booth, David Haye’s trainer, known to adopt an ultra professional set of techniques and where planning and tactical nouse are paramount. In short, Groves and his team totally out-thought and out-planned DeGayle and his team.

There are many these days who don’t see the need to use lawyers as any more than paper shufflers at best. There seems to be a growing opinion that conveyancing is simply ticking boxes and that lawyers fees should be haggled down to a point where there is no profit for the lawyers. But in important matters (boxing can be life and death, law is often life changing), it pays to have the right team and the right experience. A good solicitor will have highly honed tactical skills, commercial knowledge as well as legal skills, they often have experience which clients don’t on similar transactions. In short, a good solicitor will often mean the difference between winning or losing a case, getting the right kind of contract for you, and not least in avoiding unecessary risks… in boxing parlance, not “dropping your guard”.

So choose a lawyer carefully, having the best team is smart thinking and shop around, not necessarily on price but on experience and past performance. Boxing and law, not so different after all !

Quick stats re Age Discrimination

Age discrimination is very topical at the moment, and it looks like there will be a surge in the number of claims made in the Employment Tribunal as employers get to grips with their new obligations under the Equality Act, and society as a whole really needs to change attitudes. On perhaps interesting application of the new law not yet tested, relates to young people. It appears that young people are being hit particularly hard in the current job environment. Whilst employers may argue that young people are not selected for jobs due to lack of experience, it seems to us that there is a trend that someone can simply be considered too young as well as too old, and that now constitutes discrimination.

In terms of data, the figures on age related employment tribunal discrimination claims show that Claims increased by 164% to 2,900 in the 3 months to December 2010, compared with 1,100 in the same period in 2009.

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