Execution of Orders I

Execution

Execution refers to the various means of enforcement of court orders. There are various methods to enforce compliance with the terms of a court order, such as for delivery of possession of property or for payment of money. Enforcement is known as execution. In many cases, court orders will be obeyed and execution will not be necessary, because the person subject to enforcement will be aware of the potential consequences.

When a court order is obtained, it will not necessarily be obeyed. The court offices do not pursue enforcement automatically. It is largely a matter for the claimant in the legal action to initiate one of a number of means of enforcement.

There of different methods of enforcement depending on the type of court order and the type of asset enforced against. Some methods require a short application to the court, either with or without notice to the person enforced against.  Where any physical intervention is required, this must always be undertaken by authorised state officers such as the sheriff or County Registrar.

The Irish law on enforcement is quite piecemeal and fragmented. Much of the law is very old and has not been reformed. This is in contrast to England and Northern Ireland where the law has been updated and is more coherent.

An execution order must be against a specific person or group of persons named in the legal action. See our separate chapters in relation to the various means of enforcing court orders.

Interest runs on a court order from the time it is made at the rate specified by law (2% but it changes from time to time).  It is possible to enforce an order for costs separately. Interest also runs on an order for costs.

The general principle is that in the case of a court order for payment of money or delivery of possession, a demand is not necessary. The defendant debtor is bound to obey the order without being served. Certain types of execution, such as enforcement by the sheriff of a court order for money can be undertaken without service of a demand.

Where a court order requires a thing to be done or not to be done, the order will generally provide the time within it is to be done. Where there is a “penal notice” on the order, the person is informed that if he fails to do so, he is liable to be compelled to perform by committal to prison. This does not apply to a money court order.

An order of attachment by which it is sought to commit somebody to prison for failure to comply with a court order must be served personally unless the court otherwise directs.

Staying or suspending a court order

A court order may by its terms be subject to conditions.  These conditions must be complied with before enforcement action can be taken. Courts have jurisdiction to stay (i.e. suspend) a court order. An application may be made to stay a court order even after it has been granted. A stay may be subject to conditions which operate to suspend the order under certain conditions.

The Enforcement of Court Orders legislation provides that where a court order has been made for money payable, the order may be stayed by the court. Where the debtor is unable to pay the money, the inability is not due to his misconduct or default and there are reasonable grounds for granting an extension of time in which to pay, the court may stay the execution of the court order on such terms as it sees fit. This may include an order to pay by installments.

Judgments and Orders

A judgment or court order is a binding direction to a party to proceedings. It may be enforced by a range of measures. Although the terms “judgment” and “order” are largely synonymous, there are certain technical distinctions which can be relevant in the particular context.

A court order may require payment of a debt or payment of an amount of damages, by way of compensation. It may order payment of monies due, expressed in a foreign currency. It may order a person to do or refrain from doing a particular act. It may require land or buildings or moveable property to be delivered up or transferred. See generally the sections on remedies and on the enforcement of court orders.

In the majority of cases, the judgment of the court will be given at the end of the hearing. In some cases, the decision, which will be the basis of the court order, will be reserved for a period. In a minority of cases, a written or recent written judgment will be given. This sets out the reasons and legal basis for the decision.

The judgment in the above sense is not an order which can be immediately executed. It differs from the order, which is usually a shorter document, which sets out concisely, the remedy or award ordered. In order to enforce, the formal written order must be drawn up and authenticated by or on behalf of the judge. The Court registrar or clerk (in the District Court) prepares the order as announced by the judge. Particulars of the orders are entered in the court\’s records.

In many cases, a court order or judgment may issue by default. In a debt collection case where no defence is entered, an order for the amount due is issued from the court\’s office on the basis of a filed affidavit proving the service and the debt. An order is enforceable, once entered and filed in the courts\’ offices. The party to the proceedings who wishes to enforce may take up an official copy, in order to enforce.

Judgments or orders may be made and entered by consent. Consent may be given by the parties or their authorised legal representatives. Consent judgments may be enforced in the same way as those ordered by a judge. The parties to the case may consent to a court order, in relation to one aspect such as liability. They may then leave the issue of the amount of damages due by the party who accepts liability, to the assessment of the court.

Many claims are settled by way of a settlement agreement. They may or may not be embodied in a court order, depending on the terms of the agreement. If they are not entered as court orders, then it will be necessary for the aggrieved party to sue on the settlement agreement as a breach of contract,  if its terms are breached.

Order becomes Effective

Once a judgment is entered and the requisite appeal period has terminated, it is generally too late to change it. In the absence of exceptional circumstances, parties are bound by the terms of the court order. Exceptionally, judgments may be corrected where there is a fundamental error. This may occur where, for example, the judge did not make the decision recorded in the written order, the matter was never before the court or there has been some clerical error, slip or omission. Correction of a judgment will generally require an application to the court, with notice to the other party.

The Statute of Limitations applies to judgments and generally provides a 12 year period for enforcement. As with other provisions of the Statute of Limitations, certain equitable methods of enforcement may be denied on account of acquiescence or delay. It seems that when a part payment of a judgment is made, that the 12 year period recommences.

A judgment may take effect from the date it is pronounced or from the date it is entered. Execution cannot issue until the judgment is entered. However, the judgment is immediately effective as such. Interest on monies due and the relevant time limits will run from the date of judgment, rather than from the date of entry.

Where a judgment or order is made to pay money or deliver property, the person so ordered is bound to obey the judgment and order, without being served with the order. An execution order may issue, for example by way of application to the sheriff without the judgment or order being served.

A successful party to proceedings will generally be entitled to his costs in or under the order. In some cases for fixed money judgments, the amount of cost will be as set out in the court rules. In other cases it will be necessary to apply for a certificate of taxation of the costs.

Service

Where a judgment or order requires a person to do or refrain from doing an act, it must be served. If the act is required within a certain time, it must be served within this time. Where an order requires a person to do an act or refrain from doing an act, it should state the requisite time within which the act must be done. Such an order  will  generally bear a penal notice.

A penal notice is a notice on the order which provides and states that  if it is not obeyed, the party against whom it is made,  will be liable to proceedings to compel him to obey it.

Where an order prospectively affects the person’s liberty (attachment), it must be served personally unless the court otherwise direct.

In certain cases such as for enforcement of mortgages, trusts and for the administration of estates, the court may direct that persons interested be served, and upon being so served, that shall be bound as if they had been all parties to the proceeding. There is a provision whereby they may enter in appearance for the purpose of discharge of the judgment or order, within a period of service of the notice.

In principle ,the party may agree not to enforce a judgment. For example, in return for a payment or some other good consideration, a party might agree not to execute or enforce a judgment further. The requirements for a valid contract must be present. Breach may be enforced as a breach of contract.

Ascertainment of Assets and Means

There are means of ascertaining a creditor’s means. The enforcement of court orders legislation provides for an examination order. This is the summons to the debtor to attend the District Court an examination in relation to his asset, liabilities and means. Failure to attend can be enforced against the debtor. It may lead to an order for payment in a lump sum and ultimately by arrest and committal for deliberate disobedience.

There is also an examination procedure available in the High Court. This may also be used against companies. The directors and other officers can be summonsed to answer questions on oath. They can be compelled to produce books and documents. The  procedure is sometimes a pre-requisite for an application for the appointment of a receiver by way of equitable execution. See our separate chapter on equitable enforcement. In the Circuit Court, the application is to attend before the County Registrar.

The application for an order must be served personally. Substituted service may be ordered. The examination is made to ascertain the assets and liabilities and means. The refusal to answer a proper question can be punished as contempt of court

Law Reform Proposals

The Law Reform Commission published a report in September 2009 on the legal aspects of debt in Ireland. The Commission sets out a number of detailed provisional recommendations for reform of debt claim and judgment enforcement procedures in Ireland. The Commission examines systems of debt enforcement in a number of other countries, and provisionally recommends that the Irish system needs fundamental reform. The proposed new system would be based on the introduction of a central Debt Enforcement Office (which could build on the current arrangements) and the removal of much (but not all) of debt enforcement proceedings from the courts. The key principles which should underpin this new system are  identified, in particular:

• proportionate, balanced and appropriate enforcement in each individual case;
• improved access to information on the means of debtors; clear and simplified enforcement procedures;
•  increased efficiency and accountability in enforcement;
• a holistic approach to enforcement through interaction with the proposed debt settlement system; and
• the encouragement of increased participation of debtors in enforcement proceedings.