The call for evidence closed on 16th September 2024, and it received 46 responses from various stakeholders. These included those representing debtors, the enforcement side, and more neutral parties like the judiciary. The feedback was diverse, with some respondents advocating for significant changes to the current system, while others suggested minor tweaks. It is impossible to divorce this consultation with the current Justice Select Committee re-opened inquiry into the work of the County Court – enforcement was raised in the recent grilling by the committee of the Master of the Rolls, then the Minister for Courts the following week – all agreeing there was little point in a judgment if it could not be enforced efficiently. Regulation of all bailiffs, whether public or private, brought under the same body, was also recommended.
Report Headlines
- Enforcement too complex
- Hampered by under-funding of County Court
- Significant delay in hearings and orders for enforcement
- Could enforcement be taken away from the County Court, and moved to the High Court?
- County Court bailiffs themselves praised
- Bailiffs need personal protective equipment to do their job
- Main recommendation is for the creation of a single, unified digital court for the enforcement of judgments regardless of whether the judgment was obtained in the County or High Court
- Portal to retain information about the defendant's financial position and other debts to aid the enforcement process
- Enforcement Conduct Board has helped but does not cover County Court bailiffs (although praised elsewhere in the report, so not an issue?)
- This will take time: smaller gains including obtaining evidence from government departments and asking the Defendant to provide financial information at an earlier stage, not just once enforcement is commenced, will help in the short term
Short-term Steps
The long term recommendation is clear – a digital portal for all enforcement. In the meantime, the report suggests several short-term steps that can be taken to improve enforcement. One of these steps is implementing Part 4 of the Tribunals, Courts and Enforcement Act 2007. This would involve providing data from government departments on judgment debtors' financial state. Agencies like the Child Support Agency or the Department for Work and Pensions (DWP) could presumably be involved in this process. As well as locating debtors more easily, if other debts make repayment of the judgment unlikely at least this will be known earlier in the process and the person owed the debt can decide whether to continue the process. Also in the data sphere, there is a recommendation that HMCTS collect enhanced data sets including the number of enforcement applications issued for each method, the time taken to order and whether that order is fulfilled.
Another recommendation is to focus on defendants' financial status earlier in the proceedings, rather than waiting for judgment. This information could be crucial in deciding whether to pursue a claim to trial in the first place, with the double bonus of cutting the number of debt claims going to court. Additionally, debt advice should be made available throughout the process to support debtors and be clearly signposted.
The issue of default judgments came up in the call for evidence and the report itself, with greater protection being suggested by many respondents. The report asks that the CPRC put in further control to the rules so that a default judgment cannot be obtained unless the debt PAP has been followed, there has been confirmed service on the Defendant and the claim is not statute barred. It is also recommended that sanctions for non-compliance with the PAP be stiffened somewhat.
Long Term recommendations
The long term recommendations mainly focus on digitisation, including a single unified digital court for enforcement of judgments, regardless of where it was obtained. On a more political level, the report recommends increased funding for debt advice agencies to allow for more advice at an early state: this is to be lauded, but with so many competing areas still needing attention after the Reform project, whether the money is there is another thing entirely.
The key recommendation from the report is the creation of a single digital portal to handle all debt claims and enforcement, presumably transferring from either the digital DCP/OCMC systems or paper once Judgment has been obtained and the time for payment passed. This digital court would hold financial information on judgment debtors, which would assist with future enforcement attempts.
DWF have provides responses to both this consultation and the recently re-opened inquiry into the work of the County Court. Presumably any funding to create an enforcement portal will still come from the Reform programme, with HMCTS bidding for more funds from the government currently.
Lessons have to be learned from the Reform programme however as practitioners have been highly critical of the way the DCP has been implemented, user testing and professional viewpoints not being taken into account – within portal communications (e-mails currently not being visible on the DCP) must be included from the start for any further portals developed, for example. What is clear is that the Master of the Rolls believes there is only one solution to the problems and delays of the County Court, which can only be solved by digitalisation. Access to Justice has to be considered for elderly debtors as a 'digital only' court will not help them necessarily; the vulnerable and those with disabilities will have to be considered as well.
The short term measures recommended are good ones and should be implemented as soon as possible to protect debtors whilst the digital process is scoped out by collaborative approach, including debt agencies in the process. There is plenty to improve on but the basis is there to move enforcement forward into the 21st century.
Please contact Nicola Critchley for further information.
