Enforcement action: county court proceedings: judgment summonses: the judgment summons hearing
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
- refuses or neglects, or has refused or neglected, to pay that sum.
The hearing will be heard in open court and, although variations in local practice occur, the procedure will be broadly as follows.
When the case is called, you must enter the witness box and take the oath. You should state:
- who you are (an officer of Revenue and Customs)
- who the other side is (name of the judgment debtor and their address), whether they are here today, whether they are legally represented and if so, who by
- what the case is (give the date and amount of judgment , the order made on judgment and by which court)
- why you are here today (the issues) - this is a judgment summons issued as a result of the judgment debtor’s failure to comply with court’s order
- the (total) amount paid against judgment
- the amount in default and remaining unpaid (both on JS and in total).
Quote the law (the judgment summons is brought under Section 5 of the Debtor’s Act 1869) and the court rules that are being relied upon (the court rules are at CCR Order 28. It may help if you have a copy to hand to the court if necessary).
At this point, if the judgment debtor is not present, ask the judge if they wish to hear the evidence. They will probably not, so ask for an order for the judgment debtor to attend court and when granted, the hearing will be adjourned.
Otherwise if the judgment debtor is present, you should:
- present your evidence of means (DMBM668040)
- ask the judge for a committal order.
Say a copy of your witness statement has been given to the court (it must have been filed with your application for JS) and say who you intend to call as witnesses for the claimant (name every person who has provided a witness statement as part of your bundle). If you have any further evidence that you have not been able to serve beforehand, ask the judge at this point if it may be admitted. Ensure that you have sufficient copies at hand for all parties involved.
The judge may ask you questions (conduct examination in chief). This may not be long and may consist only of asking who you are, whether this is your statement and whether you have signed it and whether you wish to add to or amend your statement.
The judge will then invite the defence to cross-examine you about your evidence. Cross-examination means asking questions designed to expose perceived weaknesses in the other side’s case and can be unpredictable. You must answer truthfully and factually, but if you have prepared your case properly beforehand there should not be any opportunities for the other side to exploit weaknesses in your case.
You may then call the rest of your witnesses, if any, one by one. The judge will indicate whether he wishes to hear them. Ask them to state their full name, ask them to confirm that this is their witness statement and their signature, and whether there are any points they wish to add or amend. You may then ask them specific questions (such as whether the judgment debtor signed statements willingly and of their own free will). The judge will then invite the defence to cross-examine your witnesses.
When the defence has finished their cross-examination the judge may ask you if you wish to re-examine any of your witnesses. This would give you the opportunity to clarify, explain or develop any matters arising out of the cross-examination.
Once that is at an end, the defence should state their case. The judgment debtor or their legal representative may produce witnesses and they are not obliged to tell you in advance of their intention to do so, although they may well have done. If the judgment debtor is legally represented, their representative will conduct the examination in chief. The judgment debtor may take the stand, but they cannot be compelled to do so. However, if they do, you may then (and indeed you should) cross examine the judgment debtor and their witnesses.
If the evidence is not required to be heard in detail, or once it has been heard and both sides are content, you should summarise why the judgment debtor has or has had the ability to pay under the order. This should include:
- the key points in your evidence of income or assets since judgment
- the contact between you and the judgment debtor (dates of interviews, visits, offers made and outcomes and letters asking for payment - opportunities to comply with the order). Broken promises help to prove neglect
- how the JS was served and whether travelling expenses were asked for or paid
- how your evidence demonstrates that they have, or have had, the means to pay since judgment; and their failure to keep promises to pay / speak to you about payment when invited / outright refusal to pay (as appropriate) demonstrates neglect or refusal to comply with the court’s order to pay.
- ask for an order for the judgment debtor’s committal to prison for a period to be determined by the court (the maximum provided by Section 5 of the Debtor’s Act 1869 is six weeks)
- tell the court that your objective is to secure payment rather than committal to prison, and therefore
ask the court to consider suspending the committal order on condition that the judgment debtor makes payment of the amount on the JS plus the fee for the JS itself and any travelling expenses paid:
- within 7 or 14 days from this date or, if the amount on the JS is too large to make this a realistic prospect
- by weekly/monthly payments of £nn, with the first payment on or before (day of week/month) and remaining payments on (day) of each following week or month.
The judge will then make an order. You will not be notified formally by the court of the order, so it is therefore essential that you make a note of the judge’s decision.