Execution and Enforcement of Judgments
Registration of judgment
A judgment of the District, Circuit or High Court can be registered in the High Court central office. The registration is automatically published in Trade Gazettes. The threat of registration can result in payment as the debtor is aware that publication of a judgment can seriously damage a business reputation and credit rating.
A judgment can be lodged with the local sheriff for enforcement. The sheriff has the power to seize the debtor’s goods to satisfy the Judgement debt and costs.
Examination of debtor as to their means
District Court proceedings can be brought against a debtor who is an individual (as opposed to a company). A summons for attendance of debtor is issued in the District Court office and the court office assigns a date for hearing the application.
The summons requires the debtor to file a statement of means in court and to attend court to be examined as to their means.
At the hearing, the District Court judge considers the debtor’s circumstances and where appropriate will make an Instalment Order directing that the debtor pay the judgment debt and costs by instalments.
Order for arrest and imprisonment
If the debtor fails to pay the instalments due under an Instalment Order an application can be brought for the arrest and imprisonment of the debtor. A summons is issued and the District Court office assigns the date for hearing the application.
At the hearing the creditor must attend in person and prove that instalments have not been paid by the debtor. The creditor must also prove that the debtor has the ability to pay the debt but is refusing to do so. If the Judge is satisfied that the debtor has wilfully refused to pay the debt an order can be made for the arrest and imprisonment of the debtor. That order can then be sent to the Gardai for enforcement. At that point, the debtor must either pay the full arrears on the instalment order or face the term of imprisonment imposed by the judge.
Where the debtor’s circumstances are such that they cannot maintain the instalment payments ordered, they may apply to court for a variation of the instalments. Likewise if the debtor’s circumstances improve the creditor can apply to court to increase the instalment payments.
Garnishee & Receiver by way of equitable execution
Where a third party owes the debtor money a creditor who holds a judgment against the debtor may apply to court for an order directing the third party to pay, directly to the creditor (or a receiver), the money which the third party owes the debtor.
Judgment Mortgage & order for sale
If the debtor has land or property a judgment mortgage can be registered against it for the amount of the judgment debt and costs. The debtor then cannot sell the land or property without discharging the judgment mortgage debt provided there is sufficient equity.
A judgment mortgage ranks in priority after all prior registered charges e.g. a bank or building society mortgage, a local authority loan, or other existing judgment mortgages. The date of registration determines priority. Speed of registration is therefore important.
The judgment creditor can enforce the judgment mortgage by applying to court for an order for sale of the property.
Oral examination in aid of execution
This is a procedure to aid in the execution of a judgment and is mainly used where the debtor is a company.
An application can be made to the Circuit Court or the High Court for an order that any officer of the company or any other person be examined on oath as to what debts are owed to the debtor and whether the debtor has any property or means of satisfying the judgment.
The court can also make an order for the production of any books or documents of the debtor such as books of account.
The evidence obtained from the oral examination can help with other enforcement options such as lodging the order with sheriff, applying for a garnishee or registering a judgment mortgage. The evidence may also help to establish whether there has been any fraudulent or reckless trading.
A creditor may apply to the High Court to have a debtor adjudicated bankrupt. This is the personal equivalent of a company liquidation. A bankrupt’s assets are realised by a court officer (the official assignee) and the proceeds distributed amongst the bankrupt’s creditors.
Liquidation & winding up notice
Where a creditor is owed money by a limited company, a formal notice (a 21 day notice) under Section 214 of the Companies Act 1963 can be sent to the debtor company. The notice states that unless payment of the debt is made within twenty-one days the company will be deemed to be insolvent on the grounds that it is not able to pay its debts as they fall due.
If the debt is not paid, the creditor is entitled to apply to court to have the company wound up. A Petition is issued in the High Court central office. The petition is then advertised and the application comes for hearing before a High Court judge.
An injunction may, in certain circumstances, be obtained against a debtor preventing the disposal or dissipation of assets pending the trial of the action or pending payment of a debt.
Chart of Procedure
Execution and enforcement of judgments