PART 33 - ENFORCEMENT
See also Practice Direction 33A
Part 33 ENFORCEMENT
I GENERAL RULES
Application
33.1
(1) The rules in this Part apply to an application made in the High Court and the family court to enforce an order made in family proceedings.
(2) Parts 50, 83 and 84 of, and Schedules 1 and 2 to, the CPR apply, as far as they are relevant and with necessary modification to an application made in the High Court and the family court to enforce an order made in family proceedings.
How to apply
33.3
(1) Except where a rule or practice direction otherwise requires, an application for an order to enforce an order for the payment of money must be made in a notice of application accompanied by a statement which must –
(a) state the amount due under the order, showing how that amount is arrived at; and
(b) be verified by a statement of truth.
(2) The notice of application may either –
(a) apply for an order specifying the method of enforcement; or
(b) apply for an order for such method of enforcement as the court may consider appropriate.
(3) If an application is made under paragraph (2)(b), the court must issue an order which includes requirements that—
(a) the debtor must attend court at the time and place specified in the order to answer on oath such questions as the court may require;
(b) the debtor must complete a financial statement in the form served with that order; and
(c) the financial statement, together with any documents that the statement indicates should be provided, must be—
(i) filed with the court; and
(ii) served on the applicant, by the debtor not less than seven days before the date on which order requires the debtor to attend court.
(4) An order issued under paragraph (3) must include a penal notice, as defined in rule 37.2.
Transfer of orders
33.4
(3) The transfer will have effect upon the filing of the application.
(4) Where an order is transferred from the family court to the High Court –
(a) it will have the same force and effect; and
(b) the same proceedings may be taken on it,
as if it were an order of the High Court.
(5) This rule does not apply to the transfer of orders for periodical payments or for the recovery of arrears of periodical payments.
Enforcement of orders by way of committal
33.5
Part 37 applies as appropriate for the enforcement by way of committal of an order made in family proceedings.
II COMMITTAL BY WAY OF JUDGMENT SUMMONS
Interpretation
33.9
In this Chapter, unless the context requires otherwise –
‘order’ means an order made in family proceedings for the payment of money;
‘judgment creditor’ means a person entitled to enforce an order under section 5 of the Debtors Act 1869;
‘debtor’ means a person liable under an order; and
‘judgment summons’ means a summons under section 5 of the Debtors Act 1869 4 requiring a debtor to attend court.
Application
33.10
(1) An application for the issue of a judgment summons may be made –
(a) An application for the issue of a judgment summons may be made –
(i) the principal registry;
(ii) a district registry; or
(iii) the family court,
whichever in the opinion of the judgment creditor is most convenient, and if to the family court, to whichever Designated Family Judge area is in the opinion of the judgment creditor most convenient; and
(b) in the case of an order of the family court, to whichever Designated Family Judge area is in the opinion of the judgment creditor most convenient,
having regard (in any case) to the place where the debtor resides or carries on business and irrespective of the location of the court or registry in which the order was made.
(For the way in which information will be provided to enable Designated Family Judge areas and Designated Family Courts to be identified, see Practice Direction 34E.)
(2) An application must be accompanied by a statement which –
Judgment summons
33.11
(1) If the debtor is in default under an order of committal made on a previous judgment summons in respect of the same order, a judgment summons must not be issued without the court's permission.
(3) A judgment summons must be served on the debtor—
(a) personally; or
(b) by the court sending it to the debtor by first class post—
(i) at the address stated in the application for the issue of a judgment summons; or
(ii) in a case where a court officer is proceeding for the recovery of a debt in accordance with rule 32.33, at the last known address for the debtor shown on court records.
(4) In a case to which paragraph (3)(b)(i) applies, the judgment creditor must file with the court a certificate for postal service.
(5) A judgment summons must be served on the debtor not less than 14 days before the hearing.
(6) Paragraph (3) is subject to any direction of the court that the judgment summons must be served personally on the debtor.
Successive judgment summonses
33.12
Subject to rule 33.11(1), successive judgment summonses may be issued even if the debtor has ceased to reside or carry on business at the address stated in the application for the issue of a judgment summons since the issue of the original judgment summons.
Order or summons to attend adjourned hearing: requirement for personal service
33.13
(1) Paragraph (2) applies in proceedings for committal by way of judgment summons where—(a) the family court has ordered under section 110(1) of the County Courts Act 1984 that the debtor must attend an adjourned hearing; or
(b) the High Court has summonsed the debtor to attend an adjourned hearing following the debtor’s failure to attend the hearing of the judgment summons.
(2) The following documents must be served personally on the debtor—
(a) the notice of the date and time fixed for the adjourned hearing; and
(b) copies of the judgment summons and the documents mentioned in rule 33.10(2).
Committal on application for judgment summons
33.14
(1) Subject to paragraph (2), on a hearing of an application for a judgment summons the debtor may be committed for making default on payment of a debt if the judgment creditor proves that the debtor—(a) has, or has had, since the date of the order the means to pay the sum in respect of which the debtor has made default; and
(b) has refused or neglected, or refuses or neglects, to pay that sum.
(2) A debtor may not be committed in accordance with paragraph (1) where the judgment summons was served by post, unless the debtor attends the hearing.
(3) Where the debtor has been ordered or summonsed to attend an adjourned hearing in accordance with rule 33.13, the debtor may be committed—
(a) for failure to attend the adjourned hearing; or
(b) for making default on payment of a debt, if the judgment creditor proves that the debtor—
(i) has, or has had, since the date of the order the means to pay the sum in respect of which the debtor has made default; and
(ii) has refused or neglected, or refuses or neglects, to pay that sum.
(4) The debtor may not be compelled to give evidence.
Expenses
33.14A
(1) A debtor must not be committed to prison under section 110(2) of the County Courts Act 1984 unless the debtor has been paid or offered a sum reasonably sufficient to cover the expenses of travelling to and from the court building at which the debtor is summoned or ordered to appear.
(2) The sum must be paid or offered at the time of service of—
(a) the judgment summons; or
(b) the order to attend under section 110(1) of the County Courts Act 1984.
Orders for the benefit of different persons
33.15
Where an applicant has obtained one or more orders in the same application but for the benefit of different persons –
(a) where the judgment creditor is a child, the applicant may apply for the issue of a judgment summons in respect of those orders on behalf of the judgment creditor without seeking permission to act as the child's litigation friend; and
(b) only one judgment summons need be issued in respect of those orders.
Hearing of judgment summons
33.16
(1) On the hearing of the judgment summons the court may –
(a) where the order is for lump sum provision or costs; or
(b) where the order is an order for maintenance pending suit, an order for maintenance pending outcome of proceedings or an order for other periodical payments and it appears to the court that the order would have been varied or suspended if the debtor had made an application for that purpose,
make a new order for payment of the amount due under the original order, together with the costs of the judgment summons, either at a specified time or by instalments.
(2) If the court makes an order of committal, it may direct its execution to be suspended on terms that the debtor pays to the judgment creditor –
(a) the amount due;
(b) the costs of the judgment summons; and
(c) any sums accruing due under the original order,
either at a specified time or by instalments.
(3) All payments under a new order or an order of committal must be made to the judgment creditor unless the court directs otherwise.
(4) Where an order of committal is suspended on such terms as are mentioned in paragraph (2) –
(a) all payments made under the suspended order will be deemed to be made –
(i) first, in or towards the discharge of any sums from time to time accruing due under the original order; and
(ii) secondly, in or towards the discharge of a debt in respect of which the judgment summons was issued and the costs of the summons; and
(b) the suspended order must not be executed until the judgment creditor has filed a statement of default on the part of the debtor.
Special provisions as to judgment summonses in the High Court
33.17
(1) The High Court may summons witnesses to give evidence to prove the means of the debtor and may issue a witness summons for that purpose.
(2) Where the debtor appears at the hearing, the High Court may direct that the travelling expenses paid to the debtor be allowed as expenses of a witness.
(3) Where the debtor appears at the hearing and no order of committal is made, the High Court may allow the debtor's proper costs including compensation for any loss of earnings.
(4) When the the High Court makes –
(a) a new order; or
(b) an order of committal,
a court officer must send notice of the order to the debtor and, if the original order was made in another court, to that court.
IV WARRANT OF CONTROL
Applications to vary existing orders
33.20
Where an application is pending for a variation of –
(a) a financial order;
(b) an order under section 27 of the 1973 Act; or
(c) an order under Part 9 of Schedule 5 to the 2004 Act,
no warrant of control may be issued to enforce payment of any sum due under those orders, except with the permission of the court.
VI ORDERS TO OBTAIN INFORMATION FROM JUDGMENT DEBTORS
Application of the CPR
33.23
(1) Part 71 of the CPR applies to proceedings under this Part with the following modifications.
(2) In rule 71.2, for sub-paragraph (b) substitute –
“(b) must be –
(i) issued in the High Court if the High Court made the judgment or order which it is sought to enforce; or
(ii) made to the Designated Family Court for the Designated Family Judge area within which the judgment or order was made,
except that if the proceedings have since been transferred to a different court or Designated Family Judge area, it must be issued in that court or made to that area.”
VII THIRD PARTY DEBT ORDERS
Application of the CPR
33.24
(1) Part 72 of the CPR applies to proceedings under this Part with the following modifications.
(1A) (1A) In rule 72.3, for paragraph (1)(b) there is substituted –
“(b) must be issued in the court which made the judgment or order which it is sought to enforce, or made to the Designated Family Judge area within which that judgment or order was made, except that if the proceedings have 13 since been transferred to a different court or Designated Family Judge area, it must be issued in that court or made to that area.”
(2) In rule 72.4 –
(a) in paragraph (1), for ‘a judge’ there is substituted ‘the court’; and
(b) in paragraph (2), for ‘judge’ there is substituted ‘court’.
Footnotes
