Walden-Smith: Chaired working group
The Civil Justice Council (CJC) has called for a “single unified digital court” to enforce civil judgments, whether the judgment was obtained in the county court or High Court.
It would have a portal to keep information about a defendant’s finances and deal with all that person’s or party’s debts, including those “outside the court process”.
The CJC said the aim of the new court and portal would be to “remove delays and inefficiencies”, while ensuring the party in debt retained the protection of the court.
The final report on enforcement, the product of a working group chaired by Her Honour Judge Karen Walden-Smith, recorded “considerable concern” among respondents to its call for evidence about the complexities of enforcement and how the underfunding and under-resourcing of the county court in particular led to “very significant delays”.
The CJC said Wendy Kennett, a law professor at Cardiff University and the leading academic authority on enforcement in England and Wales, had identified three main models of enforcement used by European countries.
These are the administrative model, used by Finland and Sweden, in which enforcement is undertaken by executive agencies; the judicial officer model, used by France and the Benelux countries, where lawyers are paid fees to enforce judgments; and the court-centred model, where courts are responsible for the enforcement of their judgments.
England and Wales operated a “hybrid court-centred model”, with enforcement overseen by the court but using enforcement agents.
The report said that, in looking at the steps needed to create a single digital court, an “entirely different systems of enforcement, such as an administrative or judicial officer model” could also be considered.
However, despite the general view in responses to the call for evidence that “the current status quo cannot continue”, there was “no particular appetite” for either.
The digital enforcement court, where procedures and processes for enforcement were unified and with a portal to hold financial information, seemed an “obvious resolution” to the issues raised by the call for evidence, the report said.
“The digital enforcement court will hold the amounts outstanding together with details of the defendant, including assets and resources, other indebtedness and matters such as vulnerability.
“It will keep enforcement as a court process but would remove enforcement from the other work of the county and High Court which, in determining the issues in the dispute, should not need to concern itself with the assets or other indebtedness of a defendant or that defendant’s vulnerabilities.”
In the meantime, the CJC listed “various smaller reforms” to improve information sharing and advice provision.
It recommended bringing part 4 of the Tribunals, Courts and Enforcement Act 2007 into force as soon as possible, enabling a creditor to seek information from various government departments and from banks and credit agencies.
“It would change the focus of information gathering, which would become less reliant on the defendant’s engagement and would enable a creditor, if there was a defendant unwilling to engage, to seek that information from government departments and third parties by way of a court order.”
The report said sanctions for compliance with the debt pre-action protocol should be strengthened, while judges should be encouraged to ask questions about the defendant’s financial situation at the end of contested hearings.
As soon as a claim was issued, the court service should provide defendants with a debt advice information sheet and the Ministry of Justice should increase funding for debt advice organisations.
Sir Geoffrey Vos, Master of the Rolls and chair of the CJC, commented: “For too long, civil enforcement processes in England and Wales have been overly complex and unwieldy.
“There is an obvious need for rationalisation and modernisation, but it is a subject that has perhaps always been placed in the ‘too difficult box’.
“This work aligns perfectly with the core mission of the CJC. Tackling the obstacles that impede users from effectively obtaining and enforcing judgments in our courts will help make the civil justice system more accessible, fair and efficient.”
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