N316 oral examination....hints/tips sought please.

[Tigs]

I'm pursuing a debt against an extremely evasive defendant. I have decided to go down the N316 route involving oral examination, but I'm not confident that the respondent will obey the Order to attend Court.

My objective is to get to a point where I can secure an attachment of earnings.

I'd be grateful for any hints and tips please which would help to make the process more effective or even any suggestions of alternative course of enforcement action to recover the debt.

Thank you in advance.

[Tools]

Re: N316 oral examination....hints/tips sought please.

Hi Tigs, I assume you already have judgment against the debtor?

If so what order was made?

[Tigs]

Re: N316 oral examination....hints/tips sought please.

Tools - thank you for taking the trouble to get back to me.

Judgment was entered in default - the document reads as follows:-
"Notice of Judgment Entered - In accordance with your request, judgment was entered against the Defendant...." The defendant applied for the judgment to be set aside but lost.

A 'Notice of Warrant Issued' and a 'Request for Warrant of Execution' were issued (I hope I have the sequence of events right). Bailiff action has been unproductive.

[TUTTSI]

Re: N316 oral examination....hints/tips sought please.

From when I used to deal with this type of claim an oral examination is and can be quite a scary procedure but the upshot is that if they do not turn up with the books and records at the oral examination hearing and do not answer your questions they can be arrested if evasive of fail to turn up. Believe me this worked with a person who had tried to get away with paying a few people in the same industry but this worked for me a few times and before it got to the court date money was paid up in full. I quite like the use of an oral examination route especially for slippery customers that try and get away without paying and will not come to an arrangement.

http://www.compactlaw.co.uk/free-leg...forcement.html


Oral Examination
This is where your opponent is told to come to court to provide the court with details of his or her Income, Capital and Savings. You can then decide from this information whether they are able to repay the debt.

To apply for an Oral Examination you should get a "Request for Oral Examination" Form from the court. You will have to pay a small court fee when you return the form to the court.

You will need to give details of the amount of money which remains unpaid under the judgment.

The court will serve an Order telling your opponent to come to court - some courts prefer to send an Affidavit, (see Affidavit in Support) or Questionnaire to the opponent to complete first. When your opponent attends court he or she will be questioned by either a District Judge or an officer of the court.

You do not have to be present, but you can be if you wish, you can also write into the court with details of any questions you would like the court to ask your opponent.

The court will take notes of what your opponent says and will send you details if you were not at court.

If your opponent refuses to answer any questions or produce documents you can apply to the court for an Order that he must do so. This is called a "Penal Notice", ask the court to attach it to the Order.

If your opponent still fails to obey the Order they will be in "Contempt of Court" and if the Order has a Penal Notice attached you can apply to the court to commit your opponent to prison for breach of the Order.

If your opponent does not attend court then the court has to fix a new date to give him or her the opportunity to attend. If your opponent asks that you pay their travel expenses for attending court you must pay these not less than 7 days before the Hearing. You must then file a Certificate at court to say either that your opponent has not requested any money or that you have paid it. This Certificate must be filed with the court 4 days before the Hearing. Top of Page

Garnishee Proceedings
If your opponent is owed money by a 3rd Party then you can get an order that the 3rd Party pays that money direct to you, to pay off the debt owed to you. To do this your debt must be at least £50 and the 3rd party must be within England & Wales.

To apply you must send to the court an affidavit to say the money owed has not been repaid as the court ordered and that it is still outstanding. You will need to pay a court fee.

The court will grant you a temporary order which you must serve on the 3rd party. A hearing date will then be fixed when the 3rd party can attend and make objections about the order.

If the 3rd party is a bank or building society etc, where your opponent holds an account payment of the debt must not leave less than £1 in their account. Top of Page

Warrant of Execution
This is a request for the court Bailiffs to enter your opponent's home or business premises to seize your opponent's personal belongings to sell and pay off the debt.

Bailiffs cannot seize any of your opponent's essential living items such as bedding, clothing, pots and pans, furniture, household equipment, tools of a trade etc.

They cannot seize any goods on hire purchase or belonging to someone other than your opponent. You apply by sending to the court a "Request for Warrant of Execution" Form and you will have to pay a small fee.

You will need to give details of the amount unpaid. If the judgment was for your opponent to pay by instalments you must show the whole or part of the instalments is outstanding. You can then claim payment of the total sum outstanding as long as it is more than £50.

No Hearing is necessary, the court Bailiff will go to your opponent's address and can accept payment from your opponent or remove your opponent's goods. They may ask your opponent to sign an agreement that he or she will not remove or dispose of their goods until he or she has paid the debt they owe you.

A court Bailiff cannot force his way into your opponent's home or business to seize goods. Top of Page

Warrant of Delivery

If your opponent has a particular item or goods belonging to you and you are seeking their return then this is the method of enforcement you should use. If the judgment or order says the goods are to be returned to you. You should apply by sending to the court a "Request for a Warrant of Delivery" together with payment of a court fee.

No hearing is necessary, the court Bailiff will contact your opponent to fix an appointment to remove the goods.



Top of Page

Attachment of Earnings
You can use this method of enforcement as long as the debt is not less than £50. If your opponent is working you can apply for an Order that your opponent's Employer deduct a certain amount from your opponent's wages each week or month in order to pay the debt.

You can apply by sending to the court a "Request for an Attachment of Earnings" Form together with a court fee.

You must say how much of the debt remains unpaid, or if the whole or part of the instalment payments have not been made.

The court will fix a Hearing date and serve you and your opponent with details of the Hearing date.

They will also send your opponent a reply form to complete which they must return within 8 days of receiving it. A copy of the reply will be sent to you.

If the judge is satisfied that your opponent is not Unemployed or Self-Employed he or she will make an Attachment of Earnings Order.

Your opponent can within 14 days apply to the court to reconsider their order and another hearing date will be fixed when the court will either "set aside" it's previous order or continue it.

Your opponent is entitled to have part of their earnings protected against deductions. The Judge will decide how much this will be and also decide the amount to be deducted and how often. If when your opponent gets to court he or she promises to pay, the court can "Suspend" the Attachment of Earnings Order.

If your opponent does not then pay you can apply to bring the Order back in force. If your opponent fails to attend court, but you have sufficient information about your opponent's earnings then the Judge can still make an Order in your favour. Otherwise the Judge can fix another date and threaten your opponent with imprisonment if he or she does not attend. Top of Page

Charging Order

If your opponent owns property you can apply to the court to "Register a Charge" at the "Land Registry" against your opponent's property to show that you have an interest in the sale proceeds of the property. This forewarns any person intending to buy your opponent's property.

If there are any other Charges registered before you on the Land Register then those Charges will be paid first before your Charge. For example, if there is a mortgage registered against your opponent's property then that mortgage will be repaid first from the proceeds of sale.

Once you have registered a Charge against your opponent's property then you can apply to the court to Order that the property is sold so that your Charge can be paid as soon as possible.

To apply for a "Charging Order" you must prepare a Statement of Truth or an Affidavit (see Case Examples) saying why your opponent has not paid the debt and that it is still owed and also say how much is owed. You should give the name and address of your opponent and any other people that your opponent owes money to (if you know this information).

You must give details of your opponent's property (i.e. the full address and who the owner is). For example, your opponent may be married and their partner may also own a share of the property, you must put the partner's details in the Affidavit / Statement also.

You should search the Land Registry to find out details of the owner(s) of the property you want to put a Charge on and also details of any other Charges which have already been registered. This will give you some idea of whether your opponent has any other creditors.

It is a good idea to attach a copy of the results of your Land Registry search to your Affidavit / Statement.

To apply for a search of the Register you should obtain a form from the Land Registry which deals with the district where the property is located.

You then fill in the form with details of the property and the Land Registry will send you a copy of the part of the Register dealing with the property.
You will have to pay a small court fee.

See the National Searches telephone number under Small Claims Addresses and Telephone Numbers.

The court will grant you a temporary Charging Order called a "Charging Order Nisi".

They will then fix a Hearing date when you, your opponent and any other owners of the property and any other creditors of your opponent will have to come to court.

The court will send you the Charging Order Nisi and you must serve a copy of this together with a copy of your Affidavit or Statement on the opponent and any other owners of the property and other creditors.

The court will then decide at the Hearing whether or not to make the Charging Order "Absolute", (this means making the Order permanent).

If making the Charging Order Absolute would give you an unfair advantage against your opponent's other creditors the court may decide not to make the Order Absolute (permanent).

If you are successful in obtaining a Charging Order you can then apply for an "Order for Sale" of the property.

You should obtain a claim form from the court and complete this and send it back to the court with a supporting Affidavit (sworn statement) or Statement, stating the details of the Charged property, the amount for which the Charge was imposed and details of the balance outstanding.

You should explain who owns the property and any other Charges registered against the property with names and addresses of the people or company who have registered the Charge. You should also give an estimate of the sale price of the property.

The court will fix a Hearing date and serve copies of your application and Affidavit or Statement on your opponent and any other owners of the property.

Your opponent can argue that there is a "Negative Equity" and therefore you will receive no money if the property is sold.

Or the court can attach conditions, for example, if there are young children living at the property who might be made homeless. The court may attach a condition that the property is not sold until the youngest child reaches 18.

If an order is made that the property is to be sold the net proceeds of sale (after deduction of sales costs) will have to be paid to the court. Top of Page

Judgment Summons

If the debt relates to unpaid maintenance under a court order, unpaid income tax, unpaid state pension premiums or unpaid social security contributions then you can apply for a Judgment Summons.

You should obtain a Request for Judgment Summons from the court to complete. You will then need to pay a court fee.

You will need to say how much of the debt remains unpaid or if any instalments payments are outstanding.

The court will fix a hearing date and send notice of the hearing date to you and your opponent. At the hearing the judge can either order your opponent to pay by instalments. Or if it can be shown that your opponent can, but won't pay the court can send your opponent to prison for up to six weeks.

If your opponent fails to attend court then the court can issue a warrant for his or her arrest.

I'm pursuing a debt against an extremely evasive defendant. I have decided to go down the N316 route involving oral examination, but I'm not confident that the respondent will obey the Order to attend Court.

My objective is to get to a point where I can secure an attachment of earnings.

I'd be grateful for any hints and tips please which would help to make the process more effective or even any suggestions of alternative course of enforcement action to recover the debt.

Thank you in advance.

[Tools]

Re: N316 oral examination....hints/tips sought please.

OK thanks for that. Few more questions, a fuller picture of the case/debt would help if you could post it up.

What was the debt for and how much?

Are you aware that the debtor is in employment? If not an attachment of earnings would be wasting your time.

Are you sure they have the means to pay and have they made any offer to pay any amount.

If it was a business debt then you would need to use Form N316A.

You say that Bailiff action has so far been unproductive, in what way, who was the Bailff and what steps have been taken?

[Tigs]

Re: N316 oral examination....hints/tips sought please.

Thank you TUTTSI for digging up all this information for me. It gives me a 'road map' and options for pursuing this case.

[Tigs]

Re: N316 oral examination....hints/tips sought please.

Thank you Tools for taking the trouble to help. Here are the answers to the queries you raise:-

1. The majority of the debt is an accumulation of costs awarded when the respondent filed claims against me and lost;
2. The debtor is employed and has a tidy income (upwards of £4k/month net);
3. They have means to pay, and no, they never made an offer to pay;
4. The Bailiffs were from a local County Court in London. They went to the property a number of times until they got back to me saying that they have been unable to make contact with the debtor.

[Selina66]

Re: N316 oral examination....hints/tips sought please.

Great idea.

[Tigs]

Re: N316 oral examination....hints/tips sought please.

Which idea Selina66?

[Tools]

Re: N316 oral examination....hints/tips sought please.

On the basis of the info you`ve provided then yes I would carry on as you have planned. The debtor has the means, just not the will, to pay and if you can demonstrate that to aJudge they should be behind you 100%.

What were the claims filed against you and what was ordered?

[Tigs]

Re: N316 oral examination....hints/tips sought please.

Thank you Tools.

I was awarded costs following a contested divorce which I petitioned. In an act of defiance, my ex filed subsequent claims based on money allegedly owed by me, and which I was able to defend successfully. My ex was Ordered to pay, she applied for judgment to be set aside and failed!

[rogercoghill]

Re: N316 oral examination....hints/tips sought please.

I have downloaded N316 in respect of a £1250 plus costs debt from a person, on which I have obtained judgement from Northampton. Where do I send this form, i.e. can I send it to a local court or does it have to go to Northampton?, and how much is the fee? Trying to phone Northampton Court and email them is not giving me any answers.

[Tools]

Re: N316 oral examination....hints/tips sought please.

The fee is £50 roger, see in the attached pdf

Order to obtain information from a judgment debtor
• To issue an application for an order for a judgment debtor or other person to attend court to provide information.
£50

If the Judgment was given via Northampton then I would send it there