Part 71 -  A useful mechanism in the Litigation Toolbox

What is a Part 71 Order?

It is essentially an Order for a judgment debtor to attend Court to be questioned under oath on their means and assets. The judgment debtor can also be ordered to produce documents and the hearing usually takes place before a Court Officer or Judge. The application can be made against an individual or where the debtor is a company, against a Director. 

What happens at the hearing?

The hearing does not have to held in person and can be conducted remotely. This is useful in cases where the judgment debtor resides overseas and/or in cases where a debtor cannot travel to attend in person. 

Where a debtor fails to attend a hearing or refuses to answer the questions, (and/or fails to produce documents they have been ordered to provide), a suspended committal Order can be made, subjecting the individual to a fine or imprisonment unless they attend a Court hearing to be examined under oath on their assets and means. 

What is the procedure?

The application is made by completing Form N316 for an individual debtor or N316A for an officer of a company, along with payment of the appropriate Court fee. The Order to attend Court must be personally served upon the Judgment debtor (unless the court orders otherwise) and must be served at least 14-days before the hearing. Under part 71.5 the judgment creditor is required file an affidavit confirming whether the debtor has requested payment of their travelling expenses; whether they have paid any further sum and how much of the judgment debt remains unpaid.

What role can it play?

For a judgment creditor, it can be a preliminary step to help decide against which assets to enforce and where. For a judgment debtor, it places pressure on them to engage in the legal process and make payment, particularly if they do not wish to be examined on their assets and means under oath and/or be found to be in contempt of Court. 

Is Part 71 used often?

Surprisingly, Part 71 Orders are not sought as often by parties to litigation as perhaps they should. They are a useful mechanism for a judgment creditor to extract information from a judgment debtor about their assets and means, particularly wealthy debtors, in an effort to prompt payment and/or an overall settlement. 

Can someone avoid attending the hearing?

In a recent claim, handled by me and the team, the wealthy judgment debtor would become unwell and bedbound just before each Part 71 Court hearing. He sought repeated adjournments but failed to provide relevant medical evidence in support and a suspended committal order was granted against him.  As a result of this, the judgment debtor was forced to attend the next hearing (albeit remotely) and was questioned on his assets and means – which has resulted in enforcement action overseas. It transpired that the when the judgment debtor had previously claimed he was too unwell to travel to the UK, he was in fact in the UK at that time and had been untruthful.

If a judgment debtor fails to attend a hearing following a suspended committal order, the Court can order a Warrant of Arrest against the judgment debtor.  Part 71 is a formidable litigation tool against a judgment debtor and can lead to the required outcome.