Debts in the High Court

 September 2016

Fact sheet no. BDL09 BDL EW Debts in the High Court

Information:

changes to bailiff law

On 6 April 2014, the law on bailiffs changed. The information in this fact sheet is based on our understanding of the new rules. Some bailiffs may interpret the new rules differently. It is not yet clear how the new rules will be applied in practice. If you are unsure whether a bailiff’s actions are legal, contact us for advice.

High court bailiffs are commonly known as High Court Enforcement Officers (HCEOs).

Use this fact sheet to:   

  • see if the debt you owe could be enforced in the High Court;
  • understand your rights if High Court Enforcement Officers try to take your goods;
  • apply to court to stop High Court Enforcement Officers acting; and
  • find out other ways a creditor can enforce a High Court judgment against you.

The sample letter mentioned in this fact sheet can be found on our website.

What is the High Court?

High Court procedures, from the issue of the claim, up to the court making a judgment, are the same as in the county court.  However, there are important differences between enforcement procedures in the two courts.

If you have any questions about county court procedures, contact us for advice.

The High Court is part of the Supreme Court, which is based at the Royal Courts of Justice in central London and in ‘District Registries’ of the High Court in larger towns.  These are usually in the same building as your local county court.

Claims in the High Court

Consumer Credit Act 1974 cannot

The High Court is most likely to be used by creditors for claims over £100,000 for debts not regulated by the Consumer Credit Act 1974.

The creditor has to show why the case should be heard in the High Court, for example because:

  • it is for a large amount and there is a significant dispute;
  • the case is complex; or
  • the result could be very important to the public.

Enforcing a county court judgment in the High Court

Information:

consumer credit regulated debts

Your creditor cannot enforce your judgment in the High Court if the debt is covered by the Consumer Credit Act 1974.

If a creditor has a county court judgment against you, they may be able to enforce it in the High Court by taking control of goods. Business and trade creditors are likely to do this. Also, it can sometimes be done for unpaid nursery fees, funeral costs or even water charges. This is because these types of debt are not covered by the Consumer Credit Act 1974.

‘Taking control of goods’ involves High Court Enforcement Officers (HCEOs) visiting you. HCEOs are High Court bailiffs.  If the HCEOs gain entry, they may list your goods and ask you to sign a ‘controlled goods agreement’. This allows you to keep using the goods listed. However, if you do not pay, the goods listed on the controlled goods agreement can be removed and sold. In some situations, your goods may be removed straight away or, as a last resort, locked up on your premises.

When can the creditor use High Court Enforcement Officers?

The HCEO should give you seven clear days' notice that they are due to visit you. This is sometimes known as the 'enforcement notice'. 'Clear days' do not include Sundays, Christmas Day or bank holidays.

When the writ of control is issued, HCEOs have a right to try to take control of your goods. This applies even if you move the goods or give them to someone else at any time, even if this is within the seven clear days' notice period.

County court judgments

Extra advice:

check your agreement

Check you credit agreement to see if it is regulated by the Consumer Credit Act 1974. if you are not sure, contact us for advice.

If your judgment was made in the county court, your creditor may choose to apply for a writ of control if:

  • the amount owing under the county court judgment is £600 or more;
  • the debt is not regulated by the Consumer Credit Act 1974; and
  • you have not paid the county court judgment as the court ordered.

The creditor must apply for a writ of control if:

  • the creditor wants to use bailiff action against you;
  • the amount owing under the county court judgment is £5,000 or more;
  • the debt is not regulated by the Consumer Credit Act 1974; and
  • you have not paid the county court judgment as the court ordered.

High Court judgments

Information: 

stay of execution

A 'stay of execution' is an order made by the High Court which stops HCEOs acting as long as you meet certain conditions, such as paying the debt by set instalments. See How to apply for a stay of execution later in this fact sheet.

If your judgment was made in the High Court, the creditor can apply for a writ of control:

  • as soon as the judgment has been made, unless you have applied for a stay of execution; or
  • as soon as a payment becomes overdue under the terms of a stay of execution.

If a creditor wants to use a writ of control to enforce a county court judgment or High Court judgment, it will automatically be issued by the High Court unless six years or more have passed since the date of judgment. If it has been six years or more since the judgment was made, the permission of the court will be needed before the writ can be issued. 

Extra advice:

advance warning

You will get advance notice from the HCEO that they intend to take control of your goods. When you receive the notice, you may be able to pay the money due to the HCEO, or directly to the creditor, before the HCEO attempts to take control of your goods.

A writ of control is valid for 12 months and can be renewed by the creditor. The creditor will send a stamped copy of the writ to the HCEO of their choice. The HCEO will generally attempt to take goods quite quickly after the issue of the writ.

Why use the High Court? 

  • If a creditor obtains a High Court judgment on an unregulated debt, interest can be added on to the debt at a set rate, which is currently 8% a year.  This is known as ‘statutory interest’.
  • Not all county court judgments (CCJs) carry statutory interest. If statutory interest is not already being added to a CCJ and it is then transferred to the High Court for enforcement by HCEOs, statutory interest can be added from the date of transfer.
  • HCEOs may be more difficult to negotiate with than county court bailiffs.
  • The fees that HCEOs can charge are higher than those for county court bailiffs. See the section What fees can HCEOs charge?

Can HCEOs enter my premises?

Warning:

business premises

HCEOs can break into your business premises even if they have not been in before.

You do not have to let HCEOs into your home. HCEOs are not allowed to force their way into your home unless:

  • you have let them in on a previous visit;
  • they took control of your goods and you have broken the agreement you made with the HCEOs; and
  • they have given you two clear days’ notice. 

Remember:

changes to bailiff law

This is our understanding of the new rules on bailiffs from 6 April 2014. HCEOs may argue that under the new rules, they can go anywhere they like to take control of your goods. They may say that this allows them to come into your home even if they have not been in before and that you should not refuse them entry. If HCEOs say things like this to you, contact us for advice.

If you have not let the HCEOs in before, keep your doors locked. It is also a good idea to keep windows closed. HCEOs can take control of goods outside your home, so if you have a vehicle, keep it in a locked garage. If you park the vehicle on your drive, the HCEOs could clamp and possibly remove it.

You could park the vehicle away from your property, but if you park it on a public road and the HCEOs find it, they could force entry to your car and possibly clamp and remove it. Contact us for advice.

Can my goods be taken?

Extra advice:

exempt goods

The goods that HCEOs are not allowed to take include the following.

  • A cooker or microwave.
  • A refrigerator.
  • A washing machine.
  • A dining table and chairs for you and your household.

HCEOs should not take:

  • clothing, bedding, furniture and basic household items that are necessary for the basic domestic needs of you and your family;
  • tools, books, telephones, computers, vehicles and other items of equipment that are necessary for use personally in your job, business or education (up to a total value of £1,350);
  • items you or someone else is physically using, where taking the goods is likely to lead to a breach of the peace; and
  • items belonging to someone else who doesn’t owe the debt.

This fact sheet does not give a complete list of goods that HCEOs should not take. If you are unsure whether an item is exempt, contact us for advice.

Extra advice:

complaints

If you want to complain about an HCEO, contact us for advice.

If an HCEO takes control of goods that are protected, you can make a court claim for the goods to be returned. Contact us for advice.

If you have already let an HCEO into your home, it is important to bear in mind the following points.

  • The HCEO will not usually take away goods on their first visit. 
  • Remember:

    stay of execution

    Even if you have signed a controlled goods agreement, you can still apply to the court for a 'stay of execution'. However, the court may be less willing to agree to this if you have done so.

  • They may ask you to sign a ‘controlled goods agreement’. This allows you to keep using the items listed on the agreement. However, if you break the terms of the controlled goods agreement, the HCEO can return and take the goods by breaking in if necessary. They must give you two clear days' notice before doing this. If you don’t sign the agreement, the HCEOs may lock the goods up in a room in your property. Alternatively they may remove the goods straight away. Contact us for advice. 

An HCEO may not be able to take goods that are worth more than you actually owe. If they threaten to do this, contact us for advice.

Can HCEOs take goods belonging to someone else?

HCEOs should not take goods that belong to other people. If they threaten to do this, explain that the goods do not belong to you. Show a receipt or credit agreement as proof. If the owner hasn’t got a receipt, they can provide a sworn statement called a ‘statutory declaration’ instead. Contact us for advice.

If an HCEO takes goods belonging to a third party, the third party should write to the HCEO to show that they own the goods. The HCEO should pass this information onto the creditor. The creditor should then decide whether to accept or reject the third party's claim. If the creditor rejects it, the third party can apply to court to get the goods back. However, they will need to pay the court a deposit. The size of the deposit depends on the value of the goods that have been taken. Contact us for advice.

HCEOs can take goods that are jointly owned by you and your partner, but they are only entitled to your share of the goods.

If the money judgment is owed by a limited company or limited liability partnership (LLP), only assets belonging to the limited company or LLP may be taken. Contact us for advice.

Can HCEOs take goods on hire purchase or conditional sale?

There are different legal views about whether HCEOs can take goods that are on hire-purchase or conditional-sale agreements. If they threaten to do this, contact us for advice.

What if there are no goods to take?

If an HCEO comes into your home, they may decide that your goods are not worth enough to cover the cost of them coming with a van to remove and sell them. If this is the case, the HCEO may return at a later date to try to take control of your goods. They have 12 months from the date of the enforcement notice to take control of your goods. If you made a payment arrangement with the HCEO after they sent you the enforcement notice, the 12 month period starts from when you broke the terms of the repayment arrangement.

What fees can HCEOs charge?

  • £75 for the stage from issuing a writ of control to before the HCEOs initial visits. This stage includes the issue of the enforcement notice.
  • £190 - Where a controlled goods agreement is made, this fee covers the HCEO’s initial visits to when you pay the debt in full or break the agreement. If your debt is over £1,000, HCEOs can also charge 7.5% of the amount you owe above £1,000. For example, if you owe £1250, HCEOs can add on 7.5% of £250 at this stage.
  • £495 can be charged for either of the following situations.

You have not made a controlled goods agreement. Here, the fee covers the stage from the HCEO’s initial visits up to (but not including) removal of your goods.

You have made a controlled goods agreement but not kept to it. Here, the fee covers the stage from when you break the agreement up to (but not including) removal of your goods.

Note that where no controlled goods agreement is made, both the first and second enforcement stage fees can be recovered.

  • £525 - This covers the stage from attending to remove goods for sale to the end of the process. If your debt is over £1000, HCEOs can also charge 7.5% of the amount you owe above £1,000.
  • The cost of storing goods which the HCEO has removed.
  • The cost of hiring a locksmith, if one is needed.

If your goods are sold at auction, further fees can be charged. Contact us for advice.

The HCEOs should give you information about how much you owe before and after they visit you. If you think they have charged you too much, contact us for advice. You may be able to challenge the fees through the County Court.

What paperwork should HCEOs give me?

Under the law, HCEOs have to leave you paperwork telling what they intend to do or what they have done. For example, they should give you a written notice when they:

  • intend to visit you;
  • have taken control of your goods; and
  • intend to re-enter your premises after entering before.

There are strict rules about the information this paperwork must contain. If the HCEOs do not give you the correct paperwork, you can complain or consider taking legal action against them. Contact us for advice.

Challenging a debt in the High Court

Even if a county court judgment is enforced in the High Court by HCEOs, it remains in the county court for most other purposes. Therefore, if you want to challenge a judgment, or apply to set it aside for some reason, this must be done in the county court where the judgment was made in the first place. You will need to pay a fee to apply to set aside the judgment, unless you are exempt. Contact us for advice.

If the creditor has applied to use HCEOs to enforce the judgment, you may also need to make a separate application for a ‘stay of execution’. See How to apply for a stay of execution later in this fact sheet. If you don’t do this, HCEOs may visit your home. If they do so, show them copies of your application to set aside the judgment and your application for a stay of execution.

Informal agreements

Most people who cannot pay the HCEO in full straight away negotiate with them to pay by instalments. This process is informal, but cheaper and quicker than an application to the court. You need the cooperation of the creditor and the HCEO for this to work. It is important not to offer more than you can afford or to fall behind with the payments you agree. If you do fall behind with the payments and the HCEO has already taken control of your goods, they may remove them to the sale room for auction.

How to apply for a stay of execution

See our fact sheet:

Help with court fees.

You will have to pay a fee to apply for a stay of execution, unless you qualify for help.

If the HCEO issues a notice and you cannot afford to pay all the money, try to make an arrangement to pay by instalments.

If you cannot come to an agreement with the HCEO, make an application for a ‘stay of execution’ on a court form called an N244.  See the information box on Court forms towards the end of this fact sheet.  This application should be made to the court that issued the writ of control.  You will have to pay a fee to make the application.  Explain that you are requesting a stay of execution, with an offer of payment. This could be by instalments or a lump-sum payment of the whole amount by a certain date.

  • You need to provide an ‘affidavit of means’ or a ‘witness statement’ with your application for a stay of execution.
  • An affidavit of means is a financial statement, written in a specific form. See the example Affidavit of means in support of a stay of execution later in this fact sheet.
  • The affidavit has to be ‘sworn’, for example, before a court officer, a solicitor unconnected with the case, a commissioner for oaths or a justice of the peace (JP).  You will usually have to pay a small fee for this.
  • A ‘witness statement’ is very similar to an affidavit, but instead of swearing it, you sign a ‘statement of truth’.  There is no fee for this, so you may prefer to use this method. See www.justice.gov.uk for guidance on writing a witness statement.

Extra advice:

changes in circumstances

If the High Court does make an order for payment by instalments, you can apply to reduce or 'vary' the payments if you have a change of circumstances. You can use the court form N244. Contact us for advice.

  • In the affidavit or witness statement, describe any special circumstances which you feel would make it unfair for the judgment to be enforced by HCEOs.  Also, give details of any property you own and any other debts you owe.
  • Make three copies of the N244 and post (by first class recorded delivery), or take them to the court along with your affidavit of means or witness statement and the fee.
  • Ask for a hearing date as part of your application. The court will then set a hearing date and give you notice of this when they send the application form back to you.
  • You must then post (again by first-class recorded delivery), or take the form N244, notice of hearing and affidavit of means or witness statement to the creditor or their solicitor. The creditor must receive this paperwork at least four working days before the hearing.
  • As well as applying for a stay of execution in the High Court, you should also apply to the county court to vary the terms of the original county court judgment.  You should ask the county court to make an instalment order for the same amount and payment dates as you have requested in the stay of execution application.  If the county court accepts your application, and you keep to the payments, this will stop the creditor from taking most other types of action to enforce the judgment.

Information:

guidance given by courts

We have heard of cases where courts have given different advice about how to apply for a stay of execution. If you apply for a stay of execution and the court tells you to follow a different procedure to the one described in this fact sheet, contact us for advice.

 

What happens once I have applied for a stay of execution?

You must go to the hearing.
  • there is no advantage for the creditor in enforcing the judgment, for example, you have no assets; or
  • there is a good reason why you are unable to pay the money at the moment.

The hearing can be some weeks away. High Court Enforcement Officers (HCEOs) may try to visit you in the meantime.

Extra advice:

interim orders

If the District Registry agrees to issue an interim order suspending the writ of control until the final hearing, send a copy to the HCEO. Some District Registries may do this for you.

If your application is urgent, ask your local District Registry if they will agree to hold an immediate hearing and issue an interim order suspending the writ. If the District Registry agrees to your request, they will then set a date for a final hearing.

However, your local District Registry will usually need the case to have been transferred to them from the District Registry that issued the writ before considering this type of request. Not all District Registries will issue interim orders to suspend writs of control. Check with your local District Registry and contact us for advice.

Can I apply to transfer the hearing to my local court?

There is no automatic transfer to your local court when you apply for a stay of execution. 

  • Contact the District Registry of the High Court that issued the writ. Ask them to transfer the case to your local District Registry. You could include this request when you apply for a stay of execution.
  • If this does not work, try asking your local District Registry of the High Court to deal with the transfer.
  • If your request is turned down you must attend the hearing at the District Registry of the High Court that issued the writ.

Transferring the hearing is complicated. Some courts may ask you to pay a fee for this type of application. Contact us for advice.

What should I do if the stay of execution is granted?

Extra advice:

keep to the agreement

If you do not keep to the agreed instalment plan, the writ of control will start up again. If it does, the HCEO can start the process of trying to take control of your goods again.

If the court agrees to a stay of execution, you must draw up the order yourself, send or take it to the court for stamping and then serve it on the creditor. It is also a good idea to send a copy to the High Court Enforcement Officer.

You must then start making the agreed payments to the creditor.

Complaints

You can complain about the conduct of the High Court Enforcement Officer (HCEO). You must first complain in writing to the HCEO. They should deal with your complaint under their own complaints procedure. If you are not happy with their reply, you can complain to the High Court Enforcement Officers Association, who will look at the complaint if it falls within their rules. They will not deal with complaints about fees. 

The Secretary
The High Court Enforcement Officers Association Ltd

50 Broadway
London
SW1H 0RG
www.hceoa.org.uk
Email: complaints@hceoa.org.uk

Your credit rating

If you have a judgment in the county court or High Court, this will be recorded in a public register.  The information will normally stay on the register for six years unless you pay the judgment off within one calendar month.

If you pay off the judgment after one calendar month, you can ask for your entry to be marked as ‘satisfied’ if you provide proof of payment, but this will not remove the entry until the six years are up.  See www.trustonline.org.uk for more information. This is likely to affect your ability to get credit because details about county court and High Court judgments are passed on to credit reference agencies. This means that your county court or High Court judgment will show up on your credit file.

Other methods of enforcement for High Court judgments

The creditor will have to pay a fee to the High Court for applications to enforce a judgment. The creditor will add the fee to your debt and in some cases there may be extra court costs which can add as well. Remember - a creditor cannot get a money judgment against you in the High Court for a debt that is regulated by the Consumer Credit Act 1974.

Attachment of earnings order

Where a money judgment has been made in the High Court, the creditor may want an ‘attachment of earnings order’ to make your employer take regular deductions from your wages to pay the debt. In this case, they must ask for the matter to be transferred to the county court. However, interest will still be added at the High Court rate of 8%. If the attachment of earnings order does not recover all the money you owe, and another method of enforcement is used, the case may need to be transferred back to the High Court.

Extra advice:

go to the interview

It is very important that you go to the interview, or tell the court if you cannot go. The court can actually send you to prison for not cooperating with the process, so you must act if you are sent an interview date. If you want further help on information orders, contact us for advice.

Orders to obtain information

Before using enforcement action, a creditor may ask you to go to court for an interview about your income, outgoings and any assets you have, such as your house. This is called an ‘order to obtain information’, or information order.  This process is the same as in the county court. This can happen at any time and not just when you miss a payment. The interview is made up of a set of standard questions and you may be asked to bring things like your pay slips and credit agreements to the interview. 

Charging orders

Extra advice:

duty of court to consider circumstances

The High Court still has to look at all the circumstances of the case when deciding whether to make a charging order. If you have a stay of execution and are up to date with your instalments, use this as an argument against a charging order being made at the hearing.

A creditor can apply to the High Court for a charging order at any time, not just when you are in arrears with your instalments.  This can happen even if you have been given a stay of execution on a writ. 

Where a money judgment has been made in the High Court, the creditor can ask the court to put a ‘charge’ on your home.  This ‘secures’ the debt like a mortgage so that it will be paid off when the house is sold.

If a charging order is made in the High Court for a High Court judgment, the court does not have the power to agree to terms as it would in the county court, such as agreeing the creditor cannot apply for an order for sale as long as your youngest child is under the age of 18. However, the court should not give your creditor permission to sell your home if:

  • you keep up to date with any instalments the court ordered you to make under the High Court judgment; and
  • your creditor applied for the High Court judgment on or after 1 October 2012.

The High Court cannot be used to apply for a charging order if your High Court judgment is for less than £5,000. The creditor must apply for the case to be transferred to the county court nearest to you before they can make the application.

If your High Court judgment is over £5,000, the application can be made in the High Court or the county court.

Extra advice:

make an arrangement

If the court did not order you to pay the High Court judgment by instalments, it is still a good idea to make an arrangement to pay the debt back. This is because your creditor is less likely to enforce the charging order if you make regular payments.

A charging order application is a two-stage process. If you object in time, there must be a hearing in front of a judge before it is made final. Having a final charging order does not mean you will lose your home. A further application has to be made asking the court to order a sale of your home.

Most creditors are prepared to wait for you to sell your home until some point in the future, and to be paid out of the proceeds of the sale. If a creditor does make an order for sale application, a hearing will be arranged and the court has the final decision about whether the order should be granted. *

See our fact sheet:

County Court - charging orders.

   

Third party debt order

Your creditor can apply to the court to instruct someone who owes you money to pay the creditor instead. The most likely way a third party debt order would be used is where your creditor finds out you have savings in the bank and wants your bank to pay your savings to the creditor. This process is the same as in the county court.

A third party debt order is an unusual procedure and involves a court order freezing the account and a hearing in front of the District Judge. If your creditor is threatening to apply for a third party debt order, contact us for advice.

 

Information:

court forms

You can find most court forms using the court form finder on the Courts and Tribunals Service website www.justice.gov.uk/about/hmcts. You can fill in application forms online and print them off to sign and send to court.

Information:

contacting the court by email

You may be able to contact the court by email. Contact the court for advice.


 

 

     


 

Affidavit of means in support of stay of execution

IN THE HIGH COURT OF JUSTICE 1998.B.23

QUEEN’S BENCH DIVISION

BETWEEN

Walter Sichort and Sons Limited (Claimant)

And

Alan Hill (Defendant)
_________________________________________________
AFFIDAVIT IN SUPPORT OF STAY OF EXECUTION
_________________________________________________

I, Alan Hill, of 8 Long Road, Anytown, Blankshire, salesman, the above-named Defendant, make oath and say as follows:

1.  On the 9th day of June 1998, the Claimant entered judgment in this action against me for £1,500 and £350 costs.

2. I am a salesman employed by Green and Sons. I earn £250 a week net. I am married with one child aged 4. I own the house where I live with my family. The property has a value of £70,000 and is subject to a mortgage of £40,000 with HSBC.

3.  I have no other income. I have savings of £200 with HSBC. My household contents are worth £2,000. I own a Fiat car RST 425M worth £250. I have no other capital. My wife works as a cook and earns £40 per week net. She draws £20 per week child benefit.

My weekly outgoings are as follows:

£90.00 mortgage
£20.00 gas, electricity and water
£70.00 food and household
£9.00 telephone
£10.00 car repairs and petrol
15.00 council tax
£20.00 miscellaneous expenses

4. in all circumstances, the best offer I can make to satisfy the judgment in this action is by payment of instalments of £50.00 per month, and I ask that the Court will stay execution upon such judgment so long as I pay that amount each month on the 31st day of each month, commencing on the 1st day of December 2014.

SWORN this…day of .......2014

Reproduced with the kind permission of Citizens Advice​ ​ ​ ​