Canterbury: may the enforcement be with you

Walker — Thu, 03 Dec 2009 19:51:56 +0000

What steps can be taken to enforce a fi fa?
There is nothing new about people failing to pay their judgment debts, and there is nothing new about one of the most effective means of making them pay. For over 500 years now, one of the mechanisms of last resort has been the writ of fieri facias, or fi fa for short. It is a writ of execution issued by the High Court. It orders an enforcement officer to seize the goods of a debtor and to sell them in order to fulfil a judgment against him. The literal meaning of the medieval Latin words is ‘cause it to be done’. In fact, this writ is about to be renamed, and any day now fieri facias will be no more. Section 62(4)(a) of the Tribunals, Courts and Enforcement Act 2007 provides that from a day (still) to be appointed, it will be called, more prosaically, a ‘writ of control’. But not yet, not yet; and in August 2009, working in the Clinic over the summer waiting for the third year of my LLB to begin, I applied for a writ of fieri facias, and obtained one, and duly executed it.
Trapping a rat
Ramsgate, summer 2002. Joyce, who was then in her late 50s, answered a personal ad in The Times newspaper placed by a man called Terry (names have been changed). She found him very charming and they started a relationship. A few months later, Terry asked her to lend him £88,000 for the purchase of an apartment in Spain. He assured her that he would repay her two weeks later. He produced a bank statement showing a £200,000 balance that could not, he said, be accessed immediately as the account had been frozen. Joyce said ‘Yes’, and she never saw a penny of her money again. Shortly afterwards, Terry shamelessly brandished in front of Joyce a bundle of press cuttings about himself from The Sun and the Daily Mail. The articles described him as a ‘love rat’, and detailed previous court cases concerning women he had met through lonely hearts columns and then failed to recompense for large sums of money which they had lent to him – totalling half a million pounds. Joyce had no money left to pay for a solicitor to pursue him. Legal aid was not available due to the remote prospect of her actually recovering any money. Terry had, it seemed, no property or assets of any real value in his own name. The Law Clinic agreed to help Joyce to sue him in contract for the debt, and to represent her at the hearing in the Canterbury County Court in September 2007. Second-year Law Clinic student Sarah Burgess, under the supervision of Clinic solicitor Lorna Collopy, prepared the case and barrister Peter Wilkinson, a former Clinic student appeared pro bono for Joyce. Terry disputed that the money had been a loan at all. He claimed that it was an investment by Joyce in a Spanish property. Mr Recorder Moloney QC rejected all of his excuses and ruled in Joyce’s favour. He also ordered Terry to pay her a total of £102,000 (including interest and costs).
International rescue
Of course, Terry didn’t pay. He simply claimed that he had no money. The method often used to secure a debt in such circumstances is to ask the Court to place a charging order against property owned by the judgment debtor. This prevents the owner from selling the property unless the judgment debt is satisfied from the proceeds of the sale. This is relatively straightforward in this country, but Terry’s only property was in … Spain. Third-year Clinic students Nadia Brady and Alex Bishop took up the case and helped Joyce obtain a charge (known in Spanish law as a mandamiento) against the Spanish apartment. It then transpired that the combination of the Spanish property market crash and the mortgage taken out by Terry had rendered the property almost worthless.
Automatic justice
In the summer of 2009, the Law Clinic tried another way – for some of the money at least. Information was received in the Clinic that sitting on the drive of Terry’s home in Sussex was a gleaming Lotus car. Under the supervision of Clinic solicitor Catherine Carpenter, I immediately applied for and obtained a writ of fiery facias in the High Court. The Civil Procedure Rules (at Supreme Court Rules 1965 RSC Order 45[1a]) provide that a judgment must be transferred to the High Court for enforcement of debts greater than £5,000. The enforcement officers went into action, but Terry came running out of the house to claim that he was not the registered keeper of the car, and neither did it belong to him. The enforcement officers listened to what he had to say, and then lifted the Lotus on to their lorry and took it away. Terry’s claim of ‘non-ownership’ will now be decided by the High Court at an interpleader hearing. Joyce is not backing down now. She is determined to fight him all the way and the Law Clinic will represent her in those proceedings. Even if she wins, however, she will only obtain a fraction of the money owed to her. This is not an isolated occurrence for claimants. Statistics from the Registry Trust Ltd, the company that maintains the register of court judgments for the Department of Justice, show that of the 305,100 judgments made in the county court in the fourth quarter of 2008, only 25,281 were satisfied. It seems that some 90% of those successful in obtaining a county court judgment may never recover the sums due to them. Since writing this article the thirdparty claim in respect of ownership of Terry’s car was withdrawn, only days before the interpleader hearing. It is now undisputed that Terry does indeed own the vehicle and it will soon be auctioned by the enforcement officers. After the enforcement officers have deducted their fees, Joyce will receive, at last, a small percentage of the judgment debt owed to her.
David Morgan is the final year of a Senior Status Law LLB (Hons)

Medway: the Clinical Option module revealed

Walker — Thu, 03 Dec 2009 19:51:29 +0000

What is life at the Clinic really like?
Let me tell you the truth. Although I knew I wanted to take part in the Law Clinic module, I was incredibly apprehensive. I had been involved with the Clinic in my first year and recognised that the hands-on experience of the module would be valuable. Even so, I was nervous of the responsibility and the expectation. Despite the nerves that resounded within, I took my place on the module and initially found the whole thing rather overwhelming. The day that I met one of my clients for the first time, I am sure that I felt the same degree of nerves as a perfectly plump turkey would on Christmas Eve. Unlike many a turkey, I am relieved to say that I did come out at the other end of the meeting and, after discussing with the client and finding out what his objectives were and what he wanted out of his case, I felt motivated and driven to make progress for him. I do not know what I was so worried about.
Workplace realities
The Law Clinic in Medway assists clients with a variety of legal issues, ranging from property issues, such as boundary disputes to employment issues including unfair dismissals. During my time on this module, I took on the responsibility of numerous cases, one of which was a landlord and tenant dispute, and the other an employment case, more specifically, dealing with the enforcement of a court order that had been granted to our client. These two cases in particular were incredibly different, not only in terms of the law that was relevant but in relation to their pace. Taking on these cases gave me the opportunity to experience the realities of legal work. At times, there would be a great deal of urgency on one case and, frankly, things would be hectic. However, often while one case was busy, the other would be comparatively quiet. It was during these quieter times that I had the opportunity to research the procedure that I would most likely have to pursue once things picked up again. This brings me on to my next point: organisation. I have never been the model student for organisation, which is a skill that I have acquired while on the Law Clinic module, by necessity rather than choice! Having the responsibility for more than one case at any one time meant that I always had to be thinking one step ahead so that I knew the legal route I would need to go down to make progress – which meant making the Civil Procedure Rules my new best friend.
Enforcement and evasion’Briefly, in order to make progress on my employment case, where I was trying to enforce a court order granted the previous term, I researched the various methods of enforcement and then arranged a meeting with my client to discuss and agree which method they thought would be most suitable, given both their and the defendants’ circumstances. As time went on, it became clear to both myself and my supervisor, Francis Wildman, that this was not going to be a simple case of asking for a settlement and closing a lid on it. This became a case of perseverance, which at times became frustrating. This is because, unlike another student on the option who had the unenviable task of trying to co-ordinate a complicated case involving a whole street of neighbours, my case in terms of procedure was relatively simple. The frustration arose when all the additional factors were poured into the mix, such as delays at the local court and the main problem: the defendants did not want to pay! However, through frustrations and hard work, this case provided me with valuable legal knowledge and the experience of dealing with a case with all of its twists and turns along the way!
I found that the Law Clinic module provided unparalleled opportunities to research and learn about specific areas of law and apply them to real life situations which, for aspiring lawyers is a priceless experience. Another unexpected advantage to this module was the unique balance between individual work and group support. Although each student is responsible for only their cases, the knowledge that one student gained from a case they were working on was regularly helpful to another. Someone once told me that law, when stripped of unnecessarily complicated language, is basic common sense. I must say that, during the Law Clinic module, I found that to be the case. There are no red herrings or trick questions to catch you out in this module. The Law Clinic module is a perfect demonstration of aspiring lawyers using common sense and legal knowledge to make a difference to someone’s life. Now, what other module can boast that?
Jo Wilson is in the third year of a Law LLB

The Argument » Pro bono

Canterbury: may the enforcement be with you

Medway: the Clinical Option module revealed