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Enforcement Blog: Charging Orders

View profile for Aimee Herbert
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You have won your case and now have judgment, but the debtor won’t pay. Traditionally, you would probably consider instructing bailiffs. However, the ongoing coronavirus pandemic means bailiffs are currently suspended until at least 31 May 2021.

As litigation specialists, Bell Lax are experienced in all types of enforcement methods. Therefore, we will provide guidance on alternative enforcement measures you may not have previously considered in order to help you recover that debt.

We will begin by discussing Charging Orders.

Briefly, a Charging Order is a type of court order which secures the amount of the judgment debt, plus interests and costs against the assets of the judgment debtor (such as land or securities). This means that they are unable to sell the asset without first clearing the charging order, for example by paying the sum owed or providing alternative security for the debt. Charging Orders are most effective where there is substantial equity (for example, a house) and the debtor is the sole owner.

There are three stages in obtaining a Charging Order:

Step 1 – Application for an Interim Charging Order

Before applying for a Charging Order you must consider:

  • Is the debt due and enforceable?
  • What is the state of the debtor’s resources? Do they have the assets to satisfy the judgment?
  • Who, apart from the debtor, might object to the order? Are there other creditors?

If you want to apply for a Charging Order, you must lodge an application at Court. Where the judgment was made, will determine which Court you should send the application to.

To prepare the application you will need to know the following:

  • The name and address of debtor
  • Details of the judgment (including any documents from the court)
  • Confirmation of the amount of money remaining due
  • Whether instalments are appropriate
  • Whether there are any other creditors

Once the application is lodged and the court fee of £110 is paid, the court will consider the same. Provided it is appropriate to do so, they will make an interim charging order which imposes a charge over the debtor’s asset.

 

Step 2 – Serving the Interim Charging Order

 

The interim Charging Order must be served on the debtor and any appropriate third party. For example, if the asset is land, you are also required to register the charge with the Land Registry by submitting the appropriate application and fee.

 

Once the debtor has received the interim order, they have 28 days to object to a final order being made. They must file their objections at Court.

 

Bell Lax can prepare the application, file the same and serve the interim order on the debtor and any third parties for a fee of £550 plus VAT, in addition to the court fee (£110) and appropriate Land Registry fee (£3.00).

 

Step 3 – Obtaining a Final Charging Order

 

Depending on which court you filed your application with and whether the debtor raises any objections to a final order being made, the court will then decide to make a final Charging Order either with or without a hearing.

If there is no hearing, the court will send a final Charging Order in the post, which you must serve on the debtor and any third parties.

If there is a hearing, this will result in 1 of 3 outcomes:

  1. The Court will make a final order; or
  2. The Court will discharge the order; or
  3. The Court will decide any issues in dispute and may order a further hearing or other appropriate action.

Once a final charging order is made, the debtor’s interest in the asset is charged with payment of the sum owed to you, in addition to interests and the costs of the application.

You could then wait for the asset to be sold. This may be advantageous in certain circumstances. For example, if the asset is land you may want to wait until house prices increase. However, if you wished to act quickly you could apply for an Order for Sale. This is an order granting the charge holder the right to take possession of the property and then to sell it to recover the monies secured by the charge.

To obtain an Order for Sale, you must submit an application, along with the Court fee of £308. The Court will then list the matter for a hearing to decide whether an Order for Sale is to be made.

When deciding on whether to pursue a Charging Order, you should consider the pros and cons:

Pros

Cons

  • You obtain a secured debt in case of insolvency
  • Interest accrues on the amount owed to you
  • The costs of obtaining a Charging Order are added to the debt owed to you
  • The application applies pressure to the debtor, who may decide to pay the full amount to you
  • Once a Charging Order is obtained you can apply for an order for sale to recover the monies owed to you
  • Payment may take longer
  • If the property is subject to a mortgage you may rank behind others with prior charges
  • There may be issues where the asset is jointly owed
  • If the debt owed to you is small you may face difficulty obtaining an order for sale
  • The Court has discretion to grant an order for sale and, depending on the circumstances, may refuse the same

 

If you would like to discuss whether a Charging Order is the right enforcement method for you, please feel free to contact us on 0121 355 0011 and one of our expert team will be happy to assist and advise you.

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