High Court Enforcement Officers Association Chairman Andrew Wilson looks at how High Court enforcement can help deal with the backlog of outstanding civil enforcement cases caused by the Covid-19 pandemic.
This article first appeared in the February edition of Credit Management – the official magazine of the Chartered Institute of Credit Management.
There is no doubt that there will be a substantial backlog of outstanding civil enforcement cases when we get back to the new normal.
So, given that we cannot expect to make up lost time in a mad rush and must take measured steps to bring things back to normal, now is the time to enable HCEOs help the Courts deal with their backlog.
Failure to act will impact on UK plc
For residential landlords, this will mean getting possession of their properties back, unless they fall into the very restricted exceptions allowed by the SI of 13th November 2020 (SI 2020 No 1290) and for businesses it will be outstanding money judgments which may well have increased the strain of surviving in these exceptional times.
Today’s creditor (or small landlord) can easily become tomorrow’s debtor, if judgment debts cannot be collected in (or property re-let or sold with vacant possession).
High Court Enforcement Officers run small SMEs which have been affected very substantially by the pandemic and specific Government restrictions which have reduced physical enforcement work to a trickle.
After the first lockdown, when activity was substantially reduced, our members found that judgment debtors appreciated careful observance of public health measures by Enforcement Agents, engaged well with remote and/or socially distanced enforcement and made sensible arrangements for settling judgment debts, so money began to flow back to creditors.
Residential landlords were not so lucky and, in particular, buy to let landlords with a single property, who had borrowed to buy, were very hard hit when faced with a non-paying tenant.
A workable and sensible solution
We should permit HCEOs to enforce more CCJs than they are allowed to at the moment because of the restrictions under Article 8 of the 1991 High Court & County Court Jurisdiction Order (SI 1991 No 724).
For debt that would mean allowing transfer of debts below £600 to be allowed (we can set aside the pros and cons of allowing judgments based on Consumer Credit Act agreements to be enforced in the High Court, for the time being!)
For possessions, making the process of transfer from County Court to High Court a little easier by making S42 (County Courts Act 1984) consent more of an administrative matter than one of judicial discretion, to speed up the process.
The main objection from the judiciary to allowing transfers was the ability for HCEOs to evict without notice — this has now been solved by the introduction of the N54 Notice of Eviction procedure which standardised the County Court practice and provided for all evictions to be subject to a prior 14 day notice period.
Opening up choice for creditors and engaging with debtors
There should be choice for creditors and landowners—if they want to pay for speed and quality of service, they should be able to. UK plc needs to be able to recover unpaid debts, even more so in current circumstances.
£600 is an arbitrary figure, taken from the minimum amount at which fixed costs were allowed before 1998 when issuing debt proceedings in the High Court followed by the issue of a Writ of FiFa. Increasingly creditors are issuing for smaller amounts and rather quicker than they used to—that also makes sense because of the regular court fee increases on the larger amounts which the Civil Court Users Association has been so critical of.
Of course that would mean more work for HCEO businesses, but only if creditors choose to use their services. This would help HCEO businesses whose work has been restricted by statutory instrument and who have complied fully with the prior requests from the Lord Chancellor to restrict their lawful activities.
The important thing is to engage with debtors and occupiers at the earliest possible stage—a court has made an order and the vast majority of defendants (at least 85%) comply without the need for enforcement.
There will be hard and vulnerable cases where time will be needed to come to some sort of resolution but we must never get to the stage where creditors and landowners lose confidence in the court process and become tempted to take the law into their own hands.