Execution of Orders II

Court Orders

A court order is drawn up by the court offices, usually in cooperation with the claimant’s solicitor. Generally, a court order must be obeyed immediately without demand. However, in the case of some (but not all) types of enforcement, the court order must first be served on the defendant against whom enforcement is sought, before enforcement can commence.

A settlement that is not embodied in a court order cannot be enforced directly. It will be necessary to take legal action for breach of contract.  For this reason, the parties in legal proceedings may agree (however reluctantly on the defendant’s part) that a settlement is embodied in a court order. The courts will generally facilitate this in which case, the settlement becomes a court order and can be enforced accordingly.

It is possible to have an Irish court order expressed in a foreign currency.  Where this occurs, a banker’s certificate is required to confirm the equivalent in Euro as on the date of enforcement.

The court orders of European Union states can be enforced in Ireland. Similarly, Irish court orders can be enforced throughout the European Union. There are two principal possibilities. See our separate chapter EU cross-border Enforcement.

Execution orders for enforcement of a court order are valid for a period, often a year, after which time it needs to be renewed. This is a different issue to the issue of a court order becoming permanently unenforceable because of the to the statute of limitations.

A court order remains in force for 12 years. If any payment is made, the time runs afresh. After this the order may be barred from enforcement by the statute of limitations, the legislation that places time limits on legal claims.

Separate execution may be had in respect of costs. Interest accrues on cost. In addition execution, may be ordered for the sheriff\’s expenses and fees and expenses of execution.

Method of Enforcement

Execution means giving effect or force to the judgment. As set out in another chapters, there are a variety of methods of enforcing judgment / orders. A judgment or order must be entered in order to enforce or execute it. As with other areas of the law, there are  methods of enforcement which were developed by the common law courts, so called “legal” methods of enforcement . Other, more flexible methods of enforcement were developed by the courts of equity, so called “equitable” methods of enforcement. The broad principles of equity apply to the latter.

The methods of enforcement of court orders differ slightly between the courts. The Superior Court Rules  govern practice and procedure in the High Court and Supreme Court and provide for a variety of execution orders which may issue from the central office.

The Circuit Court rules make equivalent, but  less detailed provision. Some of the methods of enforcement are derived from older legislation which were are enacted in antiquated language. The court rules give effect to the legislation in modern form.

Execution Order

In order to obtain an execution order, an official copy of the court order or judgment itself must be produced. Where a money payment is required, a certificate must be signed by or on behalf of the creditor confirming the particulars of the sum due. The court offices issued the execution order with reference to the certificate. Where the order by its term gives time, the execution order may not issue until the time has elapsed.

The application for issue of the order is made to the court offices (or in the court itself in those cases where leave or application is required). The form of application for an execution order is usually signed by the party\’s plaintiff solicitor. The execution order is endorsed with details of the amount due and interest and is directed to the officer (county registrar or sheriff). It identifies the defendant by way of address and/or such other description as may be available.

The principal types of execution order, which may issue to enforce judgments are as follows:

• Order to the sheriff for execution for money judgments by seizing and selling goods;
• Order to the sheriff for possession and delivery of moveable or real property;
• Judgment mortgages;
• Orders for attachment of debts;
• Order for sequestration;
• Attachment and committal of the defendant;
• Charging orders on shares and interests in partnerships;
• Receiver by way of equitable execution;
• Stop notices.

An order for possession may be renewed from time-to-time, by leave of court. In the Circuit Court an execution order may be renewed during the period of validity of the order, for  periods of not more than a year at a time. The amount due must be verified in an affidavit for application for the renewal. Interest applies on monies due under a judgment and maybe levied. The rate is specified by ministerial order from time-to-time.

Types of Order

The appropriate method of execution available to enforce a particular judgment will depend on the subject matter of the judgment. Some types of execution orders require application to court, while others do not. Some will only be granted if the principal type of orders (e.g. sheriff seizure of goods) have been ineffective.

Judgments for payment of money may be enforced by sheriff seizure, garnishment of debts due to the defendant, sequestration or the appointment of a receiver. The latter may only be available, if the earlier orders for execution have failed

An order for a person to do or abstain from doing an act (an injunction), not requiring payment of money may be enforced by attachment and committal or sequestration. These are personal orders directed against the defendant or his assets. They are dissuasive and ultimately punitive measures, to compel compliance.

An order for delivery of land is enforced by an order of possession. Such orders must  be served personally,  before an execution order may issues from the court office. Orders for the recovery of immoveable property can be enforced by an order for delivery sequestration or attachment. The latter orders apply where the order for delivery is not complied with and are dissuasive and ultimately punitive.

Parties Bound

Generally, only the parties to proceedings,  may be bound by the judgment / order made in them. There are procedures under the court rules by which third parties may be treated as if they were parties, in relation to proceeds for the administration of estates, trusts and property.

Conversely, a judgment or order may generally be enforced, only by a party to the proceedings,  or a party for whose benefit it is made.

Orders maybe enforced individually against co-defendants. Equally, where an order contains a number of separate elements, an execution order may be obtained separately for each.

In some cases, court leave or permission is required to execute an order. The court has a discretion to grant consent or leave to the issue of the execution order consent or leave to execute is a matter of discretion rather than entitlement. An application for leave is made by application or motion in the court. Notice of the motion is generally required to be given to the parties affected.

Leave Required

Where a court order makes a requirement subject to conditions, the person entitled to enforce the order may apply to the court for leave to execute, once the conditions have been fulfilled. The court may order that the execution issues or, if necessary, may require that  matters to be determined by trial.

An application for leave to issue execution may be required, where six years has elapsed since the date of the judgment or order. Where there has been a change in the identity of the persons against whom enforcement must be taken (e.g. by the death of a party), an application is required. An application is required for enforcement against future assets;

An application to enforce an arbitration award may with  leave of the court, may be enforced in the same manner as a court judgment. An application is made to the High Court under a special procedure. The other party to the arbitration is named as the defendant. The application may be made after the period for setting it aside, has elapsed.

In some cases, the order may direct accounts to be taken and certified. In this case, an execution will not issue until the accounts have been certified.

Companies and Partnerships

Orders against companies may be enforced in much the same way as against an individual. If the company willfully disobeys the orders, a personal application for sequestration or attachment may be made against its directors and other officers. Where a court order is obtained against a company which is insolvent but is not being wound up, certain orders which would generally be available in liquidation are available directly on application to court including

• power of the court to require officers such as directors to pay debts where accounts have not been kept;
• return of assets improperly kept;
• Inspection of books by creditors;
• Summons of persons for examination;
• Order for delivery of property against the person examined;
• Liability for fraud by company officers;
• Liability for fraudulent and reckless trading liability;

Where an order is made against a partnership, an execution order may be sought against partnership property or property of individual partners who have been properly served. In addition, an application may be made for leave to enforce against other persons who are members of the partnership. This must be by an application on notice. If the partner concerned contest liability, the matter maybe referred for trial.

Stay

Courts have the discretion to grant a stay or delay enforcement of execution. The defendant may make the application at the time of the making of the order. A further application may be required to lift the stay, unless it lifts by its terms. An appeal does not operate as an automatic stay on an order, unless the court so order. The courts have a discretionary power to order a stay.

There is a statutory power to order a stay on money judgments where the court is satisfied the debtor is unable to discharge the sum due by immediate payment in full. The court must be satisfied that the inability is not caused by the debtor\’s own misconduct or default and that there are reasonable grounds for granting an extension of time.

An execution order for committal generally lasts for a year only, unless renewed. An application may be made prior to  expiration for renewal. This may be done on more than one  occasion. The application maybe made by a one-sided application to the court. If a judgment creditor applies for a new order, instead of renewing the original order, he will lose priority in execution.