As mentioned briefly here last Friday, the Government has indicated that it will implement at least some of the recommendations of the Law Commission regarding reform of the law on enforcement of financial orders. When I wrote that, I had not had the chance to look into exactly what that meant in terms of what would and would not be implemented. I have now done so and thought I would do a more detailed post to explain this important development.
As I’m sure I’ve said here previously, possibly also in the context of this Law Commission report, a court order that can’t be enforced can be little better than having no order at all, as it can be disregarded with impunity. A system of enforcement is therefore critical to any justice system.
Unfortunately, as any family lawyer will attest, family court orders, and especially financial orders, are all too often disobeyed. As any family lawyer will also attest, the current system of enforcement is complex and all too often ineffective, leaving the parties in whose favour the orders were made frustrated and angry. And if experienced lawyers find it difficult, imagine how hard it can be for a litigant in person facing the prospect of enforcing an order they have obtained. Any improvement to the system is therefore most welcome.
So what exactly has the Government said? Well, it’s all a question of parliamentary time. You see, the Government is currently tied up dealing with a small issue that goes by the colloquialism ‘Brexit’. You may have heard of it. Unfortunately, Brexit is taking up so much parliamentary time that there is no such time left to deal with other matters, including matters that many would consider rather important.
But the Government does share the Law Commission’s concerns over the enforcement system. What it has done, therefore, is to divide the Law Commission’s proposals into those that require primary legislation, and therefore precious parliamentary time, and those that do not. Those in the latter category will be brought forward, and those in the former will be left to be considered on another day.
What does this mean in terms of which proposals will be brought forward?
What it really means is not particularly bringing in anything new, but rather improving what we already have. This will entail such things as:
- Providing better guidance for litigants as to how they can enforce orders.
- Putting all the rules on enforcement in one place and making them easier to understand.
- Improving the court forms used on enforcement applications “so that debtors and creditors understand what is required of them, the financial information necessary for enforcement is provided by debtors and to let debtors know the consequences of lying”.
- Making sure that the ‘general enforcement application’ is fit for purpose.
I think most of those are self-explanatory, but perhaps the last one needs a little explanation.
There are various methods of enforcing a financial order. For example, you can obtain an attachment of earnings order, whereby money owed is deducted from the debtor’s earnings by their employer, you can obtain a third party debt order, for example taking money owed from the debtor’s bank account, you can seize the debtor’s possessions, or you can obtain a charging order (i.e mortgage) over their property to secure the debt.
Obviously, certain methods of enforcement are more appropriate in certain circumstances than others. Sometimes, though, it may not be clear which method is most appropriate. This can be especially hard for a litigant in person. Accordingly, the creditor can make a ‘general enforcement application’, which requests the court to make “an order for such method of enforcement as the court may consider appropriate”. As the Law Commission said, for many creditors, especially those who are litigants in person, the general enforcement application represents the best chance of recovering sums from a debtor who “won’t pay”.
However, the Law Commission highlighted a number of problems with the general enforcement application, in particular that there are no specific rules relating to it. The Commission therefore made a number of recommendations, which together would have the effect of making the application more of an enforcement ‘process’, with powers and remedies of its own. This would both help creditors by making it more accessible and effective, and save court time, by enabling courts to make substantive progress on enforcement at the first hearing of the application.
So all in all, not quite the progress that the Law Commission recommended (you can see all of their recommendations in their report ‘Enforcement of Family Financial Orders’, which you can read here), but still welcome improvements to this difficult area of law.