Enforcement of debt judgments

If you owe money to someone else, then you are a debtor and the other person is a creditor.

If you fail to pay a debt, your creditor can go to court to get a judgment that you owe the debt. If your creditor has a judgment, it means they can now use different ways to get the money from you. This is called enforcing a judgment. The legal term is execution of the judgment.

The creditor chooses how to enforce the judgment, and can use several different types of enforcement action at the same time. We explain these below.

When the creditor has a judgment order from a court, the judgment can be enforced through an enforcement order. Enforcement orders can be issued by court offices – the creditor does not have to go back to court for the order.

Creditors have 12 years from the date of the judgment order to look for enforcement orders. Enforcement orders are usually valid for one year and can then be renewed.

If more than 6 years have passed since the judgment order was issued, a Leave of the court (the court’s permission) is needed to continue.

What is a stay of execution?

When a court pauses an enforcement for a period of time, it is known as stay of execution.

A stay of execution may be granted, for example, if you can show that it is not your fault that you are unable to pay.

You cannot get a stay of execution if you have not been engaging with the court process.

What does registration of the judgment mean?

By registering the judgment, the creditor makes it public that there is a judgment against you for not paying money you owe. Registering the judgment does not directly enforce the judgment.

When it is made public, you are unlikely to be able to borrow more money. The creditor must tell you they plan to register the judgment before they register it. This gives you a chance to pay the debt.

The creditor can register the court judgment in the Central Office of the High Court. Credit reference agencies publish lists of judgments that are consulted by banks (for example, in Stubbs Gazette and some newspapers).

Main ways a creditor can enforce a judgment

There are 4 main ways a creditor can enforce a judgment which we explain below:

• Execution against goods
• Instalment orders, followed by committal orders (if necessary)
• Attachment of earnings
• Judgment mortgage (see more about home repossession)

Other ways of enforcing judgments include attachment of debts, appointment of a receiver and bankruptcy proceedings. These are rarely used for consumer debts. They are briefly explained in ‘Other methods of enforcing judgments’ below.

Execution against goods means that the creditor gets an order from the court which directs the Sheriff or County Registrar to seize your goods. The goods are sold and the money raised used to pay the unpaid debt.

This one of the main ways a creditor can enforce a judgment. It is sometimes called distress against goods. Execution against goods can have different forms in different courts.

Sheriffs and County Registrars

Sheriffs enforce judgments in Cork and Dublin. County Registrars enforce them in all other places.

Sheriffs are self-employed people who are paid for their enforcement work on a commission basis. The fees they get are set out in law. Under the law, sheriffs currently receive various fixed fees and a scale of fees related to the amount involved in the enforcement. It also covers various expenses the sheriff has in the enforcement process.

County Registrars are civil servants whose main job is to organise the business of the Circuit Court in their areas.

As well as County Sheriffs in Cork and Dublin, there are Revenue Sheriffs who enforce debts owed to Revenue. They have the power to collect tax debts. They do not need a court order to collect tax debts. Revenue Sheriffs have specific powers to make an instalment arrangement with you. Revenue debts can also be collected in the normal way if there is a court order.

Seizing your goods

The creditor can apply to court to have your financial circumstances examined to see what available assets you have that can be used to carry out the judgment.

Powers of a Sheriff or County Registrar to seize goods

The Sheriff or County Registrar does not have to give you notice of their intention to seize your property or goods. Their duty is to the creditor, so they cannot take your circumstances into account.

The Sheriff or County Registrar has the power to go onto your property to take your goods. They must make reasonable efforts to do this peacefully. They are entitled to forcibly enter your property.

The Sheriff or County Registrar must account to the court for the goods seized. If no goods are found, they make a return of nulla bona, literally meaning "no goods".

If the Sheriff or County Registrar does take your goods, they must give you an itemised and signed list of the goods seized. They must give you this list within 24 hours. They can then sell the goods by public auction. This can happen at any time from 2 days after the seizure. In practice, you are usually given warning of the sale.

What a Sheriff or Country Registrar cannot do

By law, the Sheriff or County Registrar cannot seize certain goods. They cannot take your necessary clothes and bedding and the tools of your trade, if the total value of such items is less than €19. In practice, goods with a low resale value are unlikely to be seized. They are likely to take electrical items, jewellery or your car (if you do not need it for work).

An instalment order is when you are ordered to repay the money you owe over a period of time in instalments that are judged affordable based on your circumstances.

Your creditor can apply to the District Court in the district in which you live to have you attend the court to assess your financial situation and ability to pay. The judge may then order payment in full or payment in instalments, taking account of your financial situation.

The instalment order procedure is mainly used by small creditors such as shops and credit unions. It can be used for judgments given in the District, Circuit or High Court.

It is also used by creditors in family law proceedings, mainly for the enforcement of maintenance orders. If you are a family law debtor, your creditor can get an attachment of earnings order. An example of a family law debtor is if you have a maintenance order against you which has not been met.

Instalment orders are governed by the Enforcement of Court Orders Acts 1926–2009.

If you do not meet an instalment order

If you do not meet the instalment order, the creditor may look for a committal order, which would send you to prison.

You can be imprisoned only if you can afford to pay debts but refuse to do so.

The law that sets out the procedure for committal orders is the Enforcement of Court Orders (Amendment) Act 2009.

First, the creditor asks the District Court clerk to issue you a summons to appear at the District Court for a hearing. The summons must clearly set out:

• The options available to the judge at the hearing
• The consequences if you do not turn up in court, including the possibility that you will be arrested or imprisoned

Before the hearing, you must:

• Prepare a statement of means setting out your income and expenditure on a weekly or monthly basis (District Court Form: 51A.02)
• Lodge this statement with the court at least a week before the hearing is due to take place

At the hearing, both you and the creditor may give evidence. The creditor must prove beyond reasonable doubt that you have the ability to repay (means), but you are wilfully refusing to pay.

The court has a number of options:

• It may change the instalment order.
• It may ask you to engage in mediation. The Money Advice and Budgeting Service (MABS) may be used for the mediation.
• It may make a committal order (for a maximum of 3 months). A committal order is an order to the Gardaí to arrest and imprison you. This can come into effect immediately, or at a later date.

If you do not attend a hearing

If you do not turn up, without a reasonable excuse, the judge can either adjourn the hearing or issue an arrest warrant. An arrest warrant orders the Gardaí to bring you before the court as soon as possible.

If you are later arrested and brought to court, a date is fixed for the hearing. The judge must make clear to you, in ordinary language:

• That you are entitled to apply for legal aid, and
• The consequences if you do not comply with the instalment order or do not appear for the hearing on the date fixed – including going to prison

The court has the power to grant you legal aid in line with the rules governing the criminal legal aid scheme.

This is when the money you owe is deducted straight from your wages by direct debit. The creditor seeks an order from court which is then served on the debtor’s employer, who sets up a direct debit.

Attachment of earnings is currently only used for orders of maintenance of spouses and children.

Judgment mortgage

The creditor may register a charge against property owned by you. The effect is the same as taking out a mortgage. You have to pay off the judgment mortgage when the property is sold. Read more about home repossession.

Attachment of a debt, or garnishee order

If you owe money to a creditor and another person owes money to you, then your creditor can get a court order directing that person to pay the money directly to the creditor. This is known as a garnishee order.

Generally, it is used only where there are no goods to be seized to be offset against the judgment. It is relatively rarely used in cases of consumer debt. Revenue has specific powers of attachment which can be exercised without a court order.

Appointment of a receiver

A receiver may be appointed over some of your assets or over future income such as rents, income of a trust fund or a pension. The law in this area is complex, but it seems that a receiver cannot be appointed over future earnings.

Bankruptcy

If you are unable to pay your debts, you can apply to the High Court to be declared bankrupt. Alternatively, your creditor may apply to have you declared bankrupt if certain conditions are met. Read more about bankruptcy.