Enforcement of judgement

Once judgement has been given, whether in default or after a trial, the judgement creditor's previous rights (eg under a contract) are extinguished and replaced by a judgement debt. The collection of this debt is the creditor's responsibility, and although the powers of the court can be called upon if necessary, they are not exercised automatically. If the debtor becomes bankrupt the debt is effectively unenforceable – a judgement debt has no automatic priority over other debts – and the winner may find herself with no redress even if the bankruptcy is subsequently discharged.

Imprisonment for debt has been rare since 1869, and has not even been a theoretical possibility since 1970. If the debtor is able but fails or refuses to pay, however, a number of possibilities arise, and in order to make enforcement measures possible he can be compelled to appear in the High Court or County Court as appropriate to be examined on oath as to his means and sources of income. The successful claimant may obtain a warrant of execution from the County Court, directing the county sheriff to seize the defendant's moveable assets (including money but excluding clothing, bedding, and the tools of his trade) and sell them to raise enough to pay the debt. A warrant is the commonest means of enforcement; it is not issued for sums under �50, nor if no order for costs was made at the trial, but otherwise its very issue is usually enough to make the defendant pay up.

A judgement for the delivery of goods may be enforced by a writ of specific delivery, directing the sheriff to seize the goods and hand them over to the creditor; or by a writ of delivery, which is similar but has the same effect as fi-fa if the goods themselves cannot be found. A judgement for the possession of land may be enforced by a writ of possession, directing the sheriff to enter the land and turn it over to the claimant.

If the defendant is in regular employment, the court can make an order for the attachment of part of his earnings, leaving him enough for his immediate needs; alternatively, a third party order may direct someone owing money to the defendant (most often the defendant's bank) to pay it to the claimant instead.

A charging order imposes a "charge" on land or shares owned by the defendant, and can be recovered when these are realised, but does not force the defendant to sell. A receiver may be appointed to receive future rents etc on the defendant's behalf and pay them to the claimant. Where the defendant is a corporation, or an unincorporated body such as a trade union, the claimant may seek a writ of sequestration whereby sequestrators are appointed to take charge of all the defendant's real and personal assets until such time as the defendant complies with the judgement.

It may well be felt unsatisfactory that the judgement creditor, having secured a judgement that he is entitled to payment, should himself be put to the trouble of enforcement. The Payne Committee recommended in 1969 that judgement debts should be enforced by an Enforcement Office attached to the County Court, so easing the creditor's task, but such measures have not yet been implemented and do not seem to be imminent. The evidence suggests that the longer a judgement debtor is able to avoid payment, the less likely he is ever to pay, and the unsatisfactory situation remains. A defendant who wilfully refuses to comply with a court order is in contempt of court, and can be imprisoned for a fixed period by a High Court judge, but this does not in itself secure the payment due to the claimant.

Appeals

For cases heard on the small claims track by the District judge, there is no appeal on the finding of fact or award of damages. Appeal may be allowed to a Circuit judge only against a visible error of law in the judgement or bias in the proceedings. For cases heard on the fast track in the County Court, there is an appeal (with permission) to a High Court judge against the judge's ruling on a point of law, his (or the jury's) finding of the facts, his exercise of his discretion, and/or the award of damages.

For cases heard on the multi-track, whether in the County Court or the High Court, either party may appeal (with permission) to the next level (i.e. from the County Court to the High Court, or from the High Court to the Court of Appeal) against the judge's ruling on a point of law, against a finding of fact, against the judge's exercise of his discretion, or against the damages or costs awarded. (From the High Court there is the alternative of a "leapfrog" appeal directly to the House of Lords, but only by special permission of the judge on a point of law of general public importance.)

Permission for an appeal may be given either by the judge appealed from or by the court appealed to, but is normally be given only where there is a real prospect of the appellate court's coming to a different decision. The appellate court does not normally interfere with a direct finding of fact unless it was manifestly perverse or unsupported by the evidence, and does not normally reverse a judge's exercise of his discretion unless it is clearly wrong or unjust. The fact that the appeal judges might have exercised their discretion differently is not enough. In all cases, a second appeal requires special permission, which is normally granted only where the case raises an important question of legal principle or practice.

At one time the Court of Appeal was reluctant to interfere with awards made by a jury unless they were grossly unreasonable, but in Rantzen v Mirror Group Newspapers [1993] 4 All ER 975, the Court of Appeal exercised its new powers under the Courts and Legal Services Act 1990 to reduce the jury's libel award of 50 000 to just under half that sum, and in John v MGN [1996] 2 All ER 35 to reduce 300 000 to 75 000. Conversely, in Cumber v Chief Constable of Hampshire (1995) Times 28/1/95 the Court of Appeal increased a jury's award of �50 for false imprisonment to 500.

When hearing a civil appeal, the appellate court can examine witnesses (though the Court of Appeal tends to rely on transcripts of the earlier hearing) and can even hear new evidence where this seems likely to be important and credible and was not previously available. A Practice Statement issued in 1989 requires counsel to submit skeleton written arguments in advance of any hearing, so that the court can reduce the amount of time spent listening to the facts and lengthy citation of authorities, and oral arguments can concentrate on the making of relevant points rather than the laying of foundations. The appellate court has all the powers of the court below. It can give any judgement the court below could have given, or can order a new trial either on the whole issue or on part of it (such as the amount of damages). Where a new trial is ordered, new evidence and new arguments may be introduced as appropriate.