CLC Enforcement Series: Orders to Obtain Information

11 February 2025

In this series I will explore the circumstances in which each enforcement mechanism may be used and why a judgment creditor may want to use a particular mechanism and set out some of the advantages and disadvantages of each of these methods.

Preliminary A: Orders to Obtain Information

It is usually sensible to know whether a judgment debtor has the means to repay their debt before getting to the enforcement stage. When it comes to enforcement, which mechanisms a judgment creditor uses to enforce their order will depend on what specific assets the judgment debtor has. Fortunately, the CPR provides a mechanism by which a judgment creditor may establish this.

Under CPR Part 71 a judgment creditor may apply to court for an order requiring a judgment debtor to attend court to provide information about the judgment debtor’s means or information about any other matter about which information is needed to enforce a judgment or order (a “Part 71 Application”). Failure to comply with an order made under this part may result in the person against whom it is made being held in contempt of court and sent to jail.

Documents and questions

In the standard procedure which will apply in the absence of some other order, the questioning will consist of a standard, extensive list of questions set out in Form EX140 for individuals and EX141 for officers of companies. This judgment debtor has to fill this in under oath in the presence not of a judge but of a court officer only.

The judgment debtor is also required to produce certain documents. The standard list of documents includes, amongst others, payslips, bank and mortgage statements, and in the case of businesses bills owed to it, 2 years’ annual accounts and current management accounts. Additional documents and questions may be requested by a judgment creditor, but these must relate to the judgment debtor’s ability to pay.

This standard procedure is appropriate for smaller judgments against individuals who may be in financial difficulty and where it would not be appropriate to allocate a judge.

Conduct of the hearing: in front of a judge or an officer of the court?

As an alternative to the standard procedure, the questioning may be conducted by the judgment creditor or their representative. This may be done in front of a judge, or a court officer. There will be cases where the judgment debtor will want to seriously consider conducting the questioning themselves or having their representative do so – cases of particular complexity or where the judgment debtor may be wily and evasive, or where the judgment is for a substantial sum.

Having the judgment creditor’s representative conduct the questioning will be more expensive, but they may be able to better establish what assets are available than a junior court officer reading from a list, particularly in cases which are complex. Applying to have the questioning conducted in front of a judge also frees the legal representative from the standard list of questions, but an order that the hearing will take place in front of a judge will only be made if there are “compelling reasons” – “only if there is a difficulty which requires the greater authority of a judge will the examination be heard by a judge.” The size of the judgment may be relevant.

Even the most hardened “professional” judgment debtors may be concerned at the prospect of having to attend court in person to be cross-examined, and at the prospect of contempt proceedings for failing to appear.

Conclusion

A judgment creditor should consider whether there is additional complexity which warrants the need for any such requests, and whether the value of the debt is worth the additional expense. It may be worth taking professional advice on these points so that you can make an informed decision. In any event, obtaining information on the judgment debtor’s means before pursuing enforcement is usually a sensible idea.

This series provides a general overview of options for judgment creditors. For detailed advice and assistance with enforcing your money judgments contact Seamus Smyth at seamussmyth@cartercamerons.com, Head of Litigation and Arbitration, or Julian Smith at juliansmith@cartercamerons.com.