Enforcement action: county court proceedings: judgment summonses: evidence of means
The successful outcome of the judgment summons hearing depends entirely on your ability to satisfy the judge that the judgment debtor has, or has had since the date of the judgment, the means to pay the amount of the judgment summons and has also refused or neglected to pay. It is therefore imperative that you have sufficient evidence of means before you apply for the issue of a judgment summons. The tests to be applied to the evidence must comply with very stringent requirements and the evidence that you will put before the court must be served on the judgment debtor with the judgment summons.
If you prove beyond reasonable doubt that the judgment debtor has had sufficient means to be able to pay since the date of judgment, the court will make a committal order against the judgment debtor. However, the judge will take into account the judgment debtor’s ability to pay now when considering the terms on which to suspend the committal order.
If the judgment debtor has little or no ability to pay now, the order is likely to be suspended either:
- on payment of very small amounts
- generally with no order as to payment.
You should bear this in mind when applying for a judgment summons and consider the evidence from both points of view.
Evidence of means now
The most acceptable evidence is clearly evidence of the judgment debtor’s ability to pay now.
The evidence must be in writing (DMBM666550).
The list below is not exhaustive, but evidence of means now might be a combination of examples from the list below. Use as many examples of evidence as you can.
- Savings such as bank deposit accounts
- Shares, Government Securities, National Savings Certificates or Premium Bonds
- Recent disposal or acquisition of an asset
- Current earnings through form 36A (you should be prepared to demonstrate that the judgment debtor has disposable income); always satisfy yourself that the information about current earnings looks reasonable, in the event that the judgment debtor challenges it at the hearing. Remember that some judgment debtors may have more than one employment which makes an AEO difficult but can provide good evidence to support a judgment summons
- Witness statements provided by officers of HMRC who have been present at interviews with the judgment debtor when facts have been discussed which are material to the judgment debtor’s ability to pay (the officer may be called to give evidence personally); see DMBM668060.
- Current contracts and payments under the Construction Industry Scheme from information provided to the Construction Industry Scheme Processing Centre
- Work in progress from information held locally, such as adverts in the local press, signs up in gardens and so on
- Statement of means provided by the debtor since judgment (but not obtained as a result of an order to attend court to obtain information); normally this will be on the Statement of County Court Judgment Debtor’s Circumstances (DMBM666550)
- Unearned income received
- Interests in property
- Information from the judgment debtor’s tax return
Evidence of means since the date of judgment or order
Remember that to secure a committal order you need to prove that the judgment debtor has had the means to comply with the court’s order since the date of judgment. If this date was some time in the past then that part of the evidence does not have to be up to date. Evidence of ability to pay since the date of judgment will be sufficient to secure a committal order. In addition to the list above, you should also consider either:
- forms P45 and P14 from each employment
- tax returns for any period since the date of judgment.
Further evidence of means that comes to light after the judgment summons has been served
After you have filed your original evidence with the judgment summons, you may discover further evidence of the judgment debtor’s ability to pay and you may wish to include it in the evidence to be heard by the court. If so, you should immediately make an application to the court for permission to file and serve it on the judgment debtor. Make your application under CPR23 on form N244. Serve the further evidence by first class post, even though the original evidence may have been served personally.
If you are unable to serve the further evidence within three days of the hearing, you should take sufficient copies of the evidence with you to the hearing and ask the judge to admit it in evidence. The judge will decide whether it may be admitted.