When settling a commercial dispute, it is important to have in mind the following key points to ensure that you are getting a fair deal.

Why are you Settling?

Settling a dispute will provide your company with closure and certainty, instead of having to wait for a judgement from a court (particularly when you are unsure what that outcome will be). It allows you to retain a degree of control over your dispute.

Another advantage to settling is that you avoid litigation costs, which can reach exorbitant rates.

Discussing a Settlement

Any statements that are made in an attempt to settle the case should be made on a ‘without prejudice basis’. This means they will not be able to be used later in a trial. If you are unsure about whether you want to be bound by a settlement, you should make sure that any oral settlement agreed is only binding after entering a written settlement agreement.

The Extent of your Business’ and Opponent’s Resources

If neither you nor your opponent have significant funds available, it would be irrational for either of you to want to prolong the commercial dispute. You want to achieve a fair result, but one that is also timely so as to prevent both sides from incurring any unnecessary, often high, costs.

Analysis on a Cost-Benefit Basis

From the beginning of the dispute you should analysis the potential outcomes of the settlement, and work out on a cost-benefit analysis the continuation of fighting the case. You may find that it is not worth it for you to continue the dispute, in which case you should push yourself to find a resolution.

Negative Publicity

If the type of dispute you are involved in will cause you to receive negative publicity for your business, this will be an added factor in encouraging you to reach a resolution. If however it is the other side who is more concerned with negative publicity, this could provide you with good leverage by which you can negotiate.

What is Your Relationship with the Other Party?

If you do other business with this party, or are planning to use them for something in the future, then it is important you are seen to be working towards a resolution which is fair to both sides.

Getting Your Money Back through Instalment Payments

If you are owed money and are in a position where you do not need the money right away, it may be more favourable to your business to set up a structure of payment in instalments. This means over a longer period of time you will be able to receive more money on top of what you are owed through interest charges.

Offering Alternatives to Money

If you do not have a lot of capital available in your business, yet owe money, it is worth offering alternatives (e.g. discounted/free goods/services). Although this is slightly cheeky, some businesses are often happy to strike some sort of arrangement like this, particularly if they need the goods/services you are offering.

Tax

Ensure that during the settlement you agree on the payment of any taxes that may arise as a result of the commercial dispute. Always seek specialist tax advice to find out what tax applies in your individual situation.

The figures

According to Lovetts, a commercial debt recovery law firm, it appears that more and more businesses have adopted more aggressive debt recovery strategies in today’s economic climate. Comparing the first quarter of 2011 and 2012 a significant rise in fact, figures show a 13.3% rise in claims over that period.

There are stages to debt recovery and often the first few steps of chasing up a debtor can either prove successful. The decision to further pursue a claim where the early stages of recovery have failed is not to be taken lightly. Taking the matter through the courts adds to the expense of the process and can be fatal to the relationships between businesses and their customers. But throughout the first quarter of 2012 businesses have appeared much more fearless in the recovery of their debt. In relation to claims taken to the courts the rise from 2011 to 2012 is an astonishing one of 39.1%. Businesses are, of course, focussing on their largest debts but these figures show a widespread strategy of debt recovery.

Current situation and the future

The previous trend in allowing debtors to get away without immediate and forceful recovery led to the danger of a late paying culture. For many companies now it is a case of employing an aggressive strategy or not surviving. The more companies who engage in the apparent new strict behaviour of chasing debtors the sooner the late paying culture can be stamped out. Late payments and bad debt are bad news all round. The debtor will often have to pay legal fees on top of the interest accrued on the sum owed. The creditor will often not recover all that is owed and will have to pay for the process of recovery. The sooner the culture can become one of early payment the better for the world of commerce and the economy.

The first quarter of 2012 has also shown an increase in confidence in the UK economy. This has been confirmed by the British Chamber of Commerce. It is important for companies to act in their best interests and to unite in good common business practices to achieve further confidence and, one again, a strong economy.

Before bringing a claim for damages it is wise to set achievable expectations and evaluate whether or not bringing formal proceedings is viable, taking into account the likelihood of winning the case and associated costs. This is especially true in the case of commercial disputes over fulfilment or non-fulfilment of contractual obligations.

1. 1. Personal Injury Damages

The main idea behind damages for personal injury is to put the claimant in the position he or she would have been in had the accident or injury not occurred

• What damages can I claim?

You can claim compensation for all types of injuries or losses that are associated with or consequential to the accident. The most common incidents include car accidents, clinical negligence, damages for industrial diseases or accidents at workplace. Damages are mostly claimed for:

• Actual personal injury (this includes both physical and mental injury);
• Damage to the property (i.e. in a car accident the person could claim not only for whiplash but also for the car damage);
• Loss of earnings (as with the above example if you are involved in a car accident as a result of which you are unable to work you can claim loss of earnings).

Interestingly, there are also more remote claims that can be made such as loss of career prospects.

• Special and General Damages

Because some of the abovementioned factors are easy to establish and quantify, and some can be more difficult, legal professionals tend to describe the former as special damages and the latter as general damages. Special damages usually include things like medical expenses, replacement of damaged property or costs of transportation. General damages typically require more in-depth analysis based on particular circumstances, past cases of similar nature and available guidance. The most widely applied guidance is published by the Judicial Studies Board and is dedicated to the topic of assessment of general damages in personal injury cases.

1. 2. Damages in Contract Law

The basic aim of damages, in contract law, is to restore the claimant to the position he would have been in had the contract been performed in accordance with the agreement.

• Contract Law Damages
  • Compensatory Damages – compensatory damages are intended to compensate for the non-performance. Sometimes, especially in the case of insurance contracts, you might hear a phrase “make the injured party whole again”. Compensatory damages are assessed using two tests:
  • Expectation Test – here the court will look at a reasonable estimation of what a party could have expected from the contract had it been fully performed. This usually is fairly easy as most contracts have specific monetary values or targets set. Alternatively, the judges can refer to appropriate market valuations.
  • Consequential Test – this test includes any remote losses that may have followed the breach. This can include loss of profits due to non-performance of interdependent agreement with a third party. The most important question here is whether the loss is a result of the breach and could it have been reasonably predicted at the time of the contract formation.

Equitable Remedies

Aside of legal damages for breach of contract, there are a number of equitable remedies available to the claimant:

• Specific Performance – requires the party at fault to perform their part of the agreement. For instance, if one party has fully paid for manufacture of machinery and the other party did not produce it, the court may at its discretion compel the breaching party to still manufacture and deliver the machinery as per agreement.
• Contract rescission – this makes the contract invalid (i.e. cancelled).

Estoppel is an argument which frequently is used as part of litigation and court disputes and defences, hence we have chosen to include an article on it on this site.

In a more practical context, estoppel prevents a person from going back on his own words or actions. A good example would be a creditor informing a debtor that the debt is forgiven and subsequently asking for repayments. Under the common law, the creditor would be perfectly entitled to do so as it is his or her legal right to receive repayments. It is for this reason that an equitable remedy of estoppel has been developed over the centuries to ‘estop’ people from subsequently relying on the rights that they have previously waived.

Promissory Estoppel

Promissory estoppel is a contract law doctrine in which a non-contractual promise is considered as enforceable to avoid an injustice. In other words, the promissory estoppel enables a party to legally enforce a promise despite the fact that promise was not made with consideration (which in turn is necessary to create a legal contract). In this context, a person who makes a promise is later on prevented from not honouring it and arguing that he or she does not need to fulfil it as it was merely a promise and not a legal contract. The only legal requirements are that the promise was reasonable in nature and that the person to whom the promise was given actually relied on it to their own detriment.

Example:

A good practical example of the application of promissory estoppel would be an oral offer by an employer to pay extra monthly cash for the rest of employee’s life if he or she retires early.

If the employee considers the offer as genuine and to his detriment relies on it, the employer may be forced to pay the employee the promised amount. In other words, the employer will not be able to go back on his words and state that the promise is invalid.

Importantly, the doctrine of promissory estoppel applies only to cases where it can be used to prevent injustice. If there is no element of injustice (usually detriment) a person will not be able to rely on the doctrine of promissory estoppel.

Are there any differences between promissory estoppel and estoppel?

The classic estoppel is a doctrine that requires a statement of fact to exist. Therefore, it estops persons from relying on their legal rights (i.e. contractual rights). Unlike estoppel, the promissory estoppel applies to situations where no legal rights exist. All that is required is a reasonable non-contractual statement that was made by one party to the other; which upon reliance has caused the other party detriment. This is possible by a mechanism known as quasi-contract. Quasi-contracts allow the courts to state that a promise forms a part of a contract implied by the law.

Proprietary Estoppel

Proprietary estoppel is a legal claim, which can be relied on in relation to rights to use the land of the owner, and can even be utilised in ownership disputes. Typically, it prevents one party from denying the other party rights to the property of the first party. This is particularly relevant in situation where the second party has incurred costs to its own detriment (i.e. through mortgage contributions).

The doctrine in fact is strikingly similar to the well-established legal concept of constructive trust. In fact, many family lawyers, being unable to establish constructive trust, rely on the doctrine of proprietary estoppel to ensure that distribution of assets is just.

Example:

A good example of proprietary estoppel would be a couple living in a house owned by only one of the partners. If the other contributes over the years to the mortgage repayments and costs of maintenance it would be unjust for the contributing party not to acquire any rights. Proprietary estoppel provides the second party with certain degree of protection by ensuring that the owner of the property does not deny the second party all the rights to the property.

Civil procedure rules are rules used by the courts in order to ensure that a case is dealt with in a just manner. Their aim is to streamline the process of civil justice, determining cases without them having to go through court proceedings. They were also designed to make proceedings more comprehendible, quicker and easier. These Rules apply in the Court of Appeal (Civil Division), the High Court and the county courts.

How Were they Developed?

The civil procedure rules developed as a result of a report written by Master of the Rolls, Lord Woolf, in 1966. His report was based on reforming the existing regulations on civil procedure. It was called the Access to Justice Report. The report contained draft rules which granted wide management powers to the courts. It was from this report that the ideas of cases being dealt with justly, litigants being treated fairly, procedures being available at a reasonable cost and cases being dealt with a reasonable speed were born from.

When do the Civil Procedure Rules not Apply?

There are circumstances where the civil procedure rules do not apply. These are in tribunals, insolvency proceedings and criminal cases. Other situations where the Rules do not apply include adoption and family proceedings and non-contentious probate proceedings.

How Do the Civil Procedure Rules Work?

The Rules are divided into ‘parts’. These parts are then subdivided into ‘rules’. These rules are accompanied by ‘practice directions’; often this is just detailed information on how the rules operate.

The first 6 Parts of the Rules contain general rules. In particular Part 1 states ‘the Overriding Objective’. This guides the courts in every case they take on, in everything they do. This Objective is the principle which states that the courts must deal with each case justly. This is in consideration of the factors of an individual case, including how complex the issues are and what each party’s financial situation is like. The Objective does not just apply to the court; it is also expected that the parties involved need to everything they can to further the Objective.

Parts 7 – 20 of the Civil Procedure Rules detail the pre-action protocol. This is what is used when beginning a case. These parts provide the details that are required from the very beginning of the process of opening a new case, from what case forms to use to what to do if mistakes have been submitted on documents that are part of case statements.

Parts 21 and 22 are the sections you would need to refer to to find out about the litigation process of a case. These parts also provide details on dealing with protected parties such as children.

Parts 23 – 25 deal with general rules on applications for court orders, summary judgements and details on interim decisions.

Parts 26 – 30 deal with how cases are managed. There are three tracks which your case could be allocated. What track your case is depends on the financial value of your case. This is often the value of the damages being pursued. The tracks available are the small claims track, which is allocated to cases with a financial value of below £5000, the fast track, which is allocated to cases with a financial value of over £5000 but below £15000, and the multi track which is over £15000. A case can be allocated as multi track if it is under this value, but is considered complex.

Parts 31 – 35 deal with information concerning evidence. The remaining parts (36-79) deal with information concerning offers to settle, and the judgement/post-judgement information.

The civil procedure rules are complex. If you are in any doubt, we recommend you speak to solicitors.

Sometimes a situation can arise where legal action needs to be taken, but the person to whom it relates is unable to represent themselves or to instruct others to represent them. In those situations the Court rules specify that the proceedings are to be conducted by a “litigation friend” on behalf of that party, whether a Defendant or a Claimant.

There are two situations where this mainly arises:

• Those who are under the age of 18 and so are considered a minor. (It is only in exceptional circumstances that a child can apply to the Court for an order that they can carry out their own proceedings without a litigation friend).

• Those who are considered to lack mental capacity within the meaning of the Mental Capacity Act 2005 (a “patient”).

The litigation friend then acts on behalf of the child or patient throughout the Court proceedings. This would include instructing Solicitors on their behalf, since no minor or patient can enter into a contract with a Solicitor.

Who can be a Litigation Friend ?

A litigation friend must be someone who is able to competently conduct proceedings on behalf of the child or patient and who has no adverse interest to that of the child. Usually a relative such as a parent or sibling would act as the litigation friend, however occasionally they may not be an appropriate choice, especially if their interests may conflict with that of the child/patient. In those cases another suitable, trustworthy, adult can be chosen for the role.

In order to be registered as a person’s litigation friend, it is necessary that they are seen to be competent, have no adverse interests and also undertake to pay any costs which the child/patient may be ordered to pay in relation to the Court proceedings. In most situations the litigation friend can then be reimbursed from the child’s/patient’s assets.

Once the above three points are covered the litigation friend must file a certificate of suitability with the Court confirming this. Such a certificate should be filed either when a claim is filed at Court or when the litigation friend takes the first step in proceedings on behalf of the child/patient. This certificate must also be served on every other party to the proceedings and a certificate of service stating that it has been served must be filed at Court.

Alternatively a person can apply to the Court to be appointed a litigation friend. Such an application needs to be supported by evidence to show that the applicant meets the necessary requirement of skill and no adverse interests.

Official Solicitor

Should there be no one eligible to act, or they are unwilling to act, then the Official Solicitor can be requested to act as litigation friend. The Official Solicitor will then either act himself in the proceedings, or appoint a firm of Solicitors to act on his behalf.

Before the Official Solicitor will act, it is necessary to prove that the person involved lacks the proper mental capacity. This can be done by providing appropriate medical reports and certificate of capacity.

Additionally you must show which other person had been considered to be a litigation friend, such as relatives or friends, and provide reasons why they cannot act in this instance.

Finally, the Official Solicitor requires funding for the costs of acting as Solicitor or instructing other Solicitors. These must be guaranteed from the outset for the Official Solicitor to consent to act in the matter. If the person has assets, they will require the Court of Protection authorisation to act and take costs from the party’s assets, otherwise the person requesting the Official Solicitor to act will have to undertake to pay his costs.

How proceedings work with a Litigation Friend

Whilst proceedings continue as normal even when a litigation friend is appointed, there is a main difference from that of normal proceedings in that a litigation friend cannot finalise a child’s accident compensation claim without the Court being involved.

In those situations the Court will conduct a ‘minor settlement hearing’ where the judge will consider all the evidence in the case and the offer being proposed. Usually the judge will request written opinion from Counsel reviewing all the evidence and stating whether they believe that the compensation offered is reasonable and sufficient.

Additionally if an award is made to a child/patient then these funds are held by the Court funds office until the child turns 18. No one is allowed to use this money, unless the Court orders it to be used for furthering the child’s education. How the rest of the money is invested is then decided by the litigation friend and the Court judge.

Termination of a Litigation Friend’s Appointment

At all times the Court has the ability to terminate a person’s position as litigation friend. In that case the Court will usually appoint a substitute. Additionally the Court can deny a person being a litigation friend at the start on filing the Certificate of Suitability.

Furthermore, when a child reaches the age of 18 the litigation friend’s appointment is automatically terminated and the child in question must serve notice on all the other parties to the proceedings that this has occurred. They must inform the other parties whether they intend to continue in the proceedings or not.

This article courtesy of Darlingtons Solicitors. If you need a solicitor in London or litigation solicitors, Darlingtons can help.

Litigation is inherently risky and inherently expensive, and this means that many small businesses avoid using solicitors and the courts on cases which may otherwise succeed. Success is also a difficult issue in litigation in that success in achieving a settlement or winning at trial is not the same as recovering money in the bank – it is one thing having a judgment against an opponent, it is often another thing entirely to enforce that judgment.

Conditional fee agreements, otherwise known as CFA’s have proved incredibly successful in personal injury cases, both for clients who would otherwise either not be able to afford a lawyer or who would be scared off by the risks. the difference with personal injury claims is that with many types of claims it is possible to predict quite confidently the legal and evidential position, and, crucially, as most personal injury claims are made against insurers, the issue of recoverability is not problematic.

Recent reaserch from YouGov  has found that over 50% of sme’s when asked said that cost puts them off litigating. Interestingly, 40% said that they are unaware that CFA’s can be used for commercial claims. When asked whether a CFA arrangement might change their opinion on pursuing a claim, over 30% said this might be the case.

With commercial litigation, lawyers would be likely to be very cautious, for the reasons described above, but there is scope for opportunity for lawyers to be creative – for example with a hybrid CFA where there is some form of basic payment made, heavily discounted, with an additional success element payable. Sharing of risk creates confidence between solicitor and client, but from a solicitor’s point of view, they can never be sure of the strength of a client’s case, clients will often embellish the truth or be blinkered to unhelpful legal and evidential aspects. Both sides also need to be aware that CFA’s will almost certainly have clauses whereby the client may have to share decisions or even defer to the lawyers if an offer of settlement is made which the client thinks is low, but the lawyer thinks should be accepted. the opponent will have to be told of the existence of the CFA as part of the process, so a savvy opponent may well seek to test the relationship between the solicitors and client on the other side with tactical offers.

The purpose of this article is not to provide a comprehensive over view of the law, but to produce a summary for those who find themselves in a situation involving parental responsibility and problems involving maintenance.

The meaning of Parental Responsibility is governed by Section 3 Children Act 1989 and encompasses all rights, responsibilities, duties, powers and authority which by law, a parent of a child has in relation to the child and his property.

This often confuses some parents and they often enquire as to what rights this specifically covers. Examples of such rights are set out as follows;

• providing a home for the child
• having contact with the child
• protecting/ disciplining the child
• choosing the school/ determining the religion of the child
• making decisions as to the schooling of the child
• agreeing to changes in the child’s name

Who has parental responsibility ?

• A mother automatically acquires parental responsibility.
• A father acquires this automatically if they are married at the time of the child’s birth, or if they are named on the child’s birth certificate.

How can it be acquired ?

• A father can acquire parental responsibility if he is registered on the birth certificate or if he jointly registers the birth with the mother.
• By a Parental Responsibility Order made by the Court.
• By a Parental Responsibility Agreement with the mother.
• Point to note: Parents do not lose parental responsibility if they divorce and if the parents are not married, parental responsibility does not always pass to the natural father should the mother pass away.

Acquiring PR through the Courts

A father can apply to the court to gain parental responsibility. In considering an application from a father, the Court will take the following information in to account:

• The degree of commitment shown b the father to his child
• The degree of attachment between father and child
• The father’s reasons for applying for the order

The Court will then decide to accept or reject the application based on what it believes is in the child’s best interest.

A father who does not have parental responsibility can also apply for a contact order through the court, to set out a timetable for contact, if this cannot be agreed amicable between the parties. This is usually done at the same time as applying for a parental responsibility order.

Maintenance

The question of maintenance often arises in conjunction with the issue of parental responsibility. A parent who does not live with the child still has a legal obligation to contribute to the day to day maintenance of their child, regardless of whether they have parental responsibility or not.

Maintenance can be arranged via a private agreement between the parties or can be arranged through the Child Support Agency directly. If the CSA is used, their role is to calculate the rate of maintenance payable, based on the non residing parent’s net weekly income, the number of dependants and the amount of nights spent with the non residing parent. Once this has been decided, the maintenance is deducted at source from their earnings and passed on to the parent who has residence.

This article was written by Maya Bhatiani, an Assistant Solicitor in the litigation and family law departments at Darlingtons Solicitors. Follow us on twitter @darlingtons_

The purpose of this article is not to provide a comprehensive over view of the law on party walls, but to produce a guide for those who find themselves in a similar situation to the one outlined in this title.

If your neighbour is commences building works and they fall within the scope of the Party Walls Act, then you may have the right to prevent your neighbour from building their extension.

For example, the Act will cover boundaries which are deemed as party walls, being walls which fall on the boundary line between two properties and any excavation, construction or connective work which may affect the neighbouring property’s foundations or structure.

The first issue arising is whether the works your neighbours are carrying out fall within the Act. If the works directly affect the party wall or other party structure then this will be included in the Act. If your neighbours are excavating close to your property and the works are likely to compromise the foundations of your property, or are constructing a new wall at the junction of the properties, these works are likely to be caught by the Act.

If the works are caught by the Act, your neighbour must serve a Party Wall Notice on you, two months before the proposed works are to begin, in order to gain your consent to begin the works.

You may serve a counter notice setting out any reasonable requirements or conditions you require the works to adhere to.

However, if you do not respond, this will be taken as dissent to the works and your neighbour must appoint a jointly agreed surveyor or a surveyor must be appointed on behalf of each party, in order to come to an agreement about the works needed to be carried out.

Once this has been agreed, the Surveyors will make a ‘Party Wall Award’ which in essence, determines the right to execute any works, the time and manner in which the works must be carried out and resolving any other issues arising from such works.

This Award can be appealed by you, but there is a time limit of 14 days in which to do this. A Court will make a decision on whether to rescind the Award and will award costs at its discretion.

Once the Award has been made, works may commence and reasonable costs in relation to making and obtaining the award, in relation to reasonable inspections of work and any matters arising from the dispute will be payable by the party determined by the surveyor.

However, your neighbour can also retrospectively serve party notice in order to obtain the necessary award if they have completed works without an award. However, if you can show that damage has been done to your property, you are likely to be able to sue for breach of statutory duty, damages and injunctive relief in order to relieve damages done to your property and costs.

Maya Bhatiani is an Assistant Solicitor in the Litigation Department at Darlingtons

In many cases when a party has applied and received an Order for Financial Relief, the Respondent will fail to comply with some or all of the Order. It is therefore important for people to know what they can do to enforce such an Order and which way is most likely to succeed in their specific circumstances.

Before deciding on the best course of action to enforce a Financial Order, it is important that the affected party inform their solicitor or take advice immediately if the other party is in default. This is because in cases of periodical payments, should the arrears be more than 12 months old, the Court will only hear the matter if you apply for leave to bring the matter before the Court, and it is possible that the Court will refuse, which wipes the slate clean for the Respondent.

The method of enforcement to use will depend on the circumstances and assets of the Respondent. Whilst you may have known what these were at the time of the original hearing, should you believe that they could have substantially changed, you can apply for the Respondent to attend Court to have an oral examination as to their current financial circumstances. Failure by the Respondent to attend would be contempt of Court.

The following are possible ways of enforcement:

1. Attachment of Earnings Order:

Under such an Order the Respondent’s employer will be obligated to deduct a specified sum from his earnings. This amount will usually represent the amount of the maintenance with a proportion of the arrears, where possible. This money is then sent to the Court which will then forward it to the party in whose favour the Financial Order was made.

Such an Order will also specify a ‘minimum amount’, below which the Respondent’s wage cannot fall. This will mean that should his earnings drop below this amount, the employer will no longer be able to deduct any money from his wage.

This type of Order is best suited where there has been an Order for periodical payments. It can be applied for either when the Order is first made, or later when the Respondent defaults.

The main drawback of this method is that should the Respondent lose his job, or have his wage fall below the minimum amount, then this Order will not be enforceable. Additionally if they are self employed it cannot be used and if they constantly change jobs, it will make it administratively difficult to maintain.

2. Warrant of Execution:

This warrant enables the County Court Bailiff to seize and sell assets belonging to the Respondent so as to cover the outstanding arrears. No hearing is required for this. This method is most useful for unpaid lump sum orders, but could also be used where periodical payments have substantial arrears.

This method assumes the Respondent has sufficient goods of a value which could be sold to make up the arrears.

3. Third Party Debt Order:

Under this Order, the  Applicant is able to receive payment direct from a third party who owed the Respondent money, such as a bank or building society.

Such an Order has two stages. First an Interim Order is made which will freeze the account/assets of the Respondent. This Order can be made without notice. Then a full hearing will take place where the Court can make the Interim Order final. This method can be useful to enforce any unpaid lump sum Orders.

4. S.24A Matrimonial Causes Act 1973:

Under this Act the Court can make a Financial Order with a condition attached relating to the property of the Respondent. So, for example, the Order could provide for the Respondent to pay a lump sum of £30,000 – which would be the Applicant’s share of the home – and should that sum not be paid within a specified time limit, then there is an Order to sell the home and have £30,000 of the proceeds paid to the applicant.

5. Charging Order:

The Applicant can apply to Land Registry for a charge to be placed against the Respondent’s land, or land in which they have an interest in. Again, such an Order is acquired in two stages, first obtaining an Interim Charging Order and then a Final one at a full hearing.

Once the Applicant has a Charging Order they will have a security for the debt. It can also be possible that the Court will Order the property to be sold, however where it is the Respondent’s home and the amount owed is relatively small it is likely that the Court will not make such a draconian Order. In this case the Applicant would have to wait until such time as the Respondent decided to sell their house.

6. Judgment Summons:

The Court has the power to commit the Respondent to prison where they have failed to pay under the Order, so long as the Respondent has defaulted on the Order and they have the means to pay but are refusing or neglecting to do so.

Although originally the Court would bring the Respondent in for questioning about their means, this is now seen as a breach of their Human Rights, so it is now necessary for the Applicant to show beyond reasonable doubt that the Respondent has the means to pay. This can make it very difficult so is rarely used.

An additional option is to apply to register the County Court Order in the Family Proceedings Court. In this way payments are made by the Respondent direct to the Clerk of the Court, enabling them to make a complete record of what money is being paid and when. It should be noted that many Family Proceeding Courts will only accept registration of a County Court Order where the Respondent is already in arrears.

An added benefit of registering the Order at the Family Proceedings Court is that they will then start enforcement proceedings, should the Respondent fall into arrears.

In deciding which route is best to take to enforce a Judgment you must take into account all the circumstances of the case, especially that of the Respondent. There would be no point going down a long and expensive route where at the end of it the Respondent has no assets to actually take.

This helpful article kindly contributed by Darlingtons Solicitors, who offer specialist advice in litigation and many other areas of law.