July 20, 2012

Payment of a Judgment by instalments

This post was written by: Aston Bond Law Firm

The normal rule under CPR Part 40.11 is that judgment sums should be paid within 14 days unless the Court orders otherwise.

The Court has the discretion to alter the normal 14 day period and to order payment by instalments. However, this is the exception rather than the norm.

The relevant factors for the Court to consider on such an application are enunciated in three decisions of the High Court:

In Gipping Construction Ltd v Eaves Ltd it was observed that the Court has absolute discretion when deciding if the time period should be extended. However, any application must be supported by proper evidence and prior to the application, it must have been discussed between the parties. Nevertheless, mere inability to pay is no defence and the insolvent debtor must take the usual consequences of insolvency.

In Amsalem v Raivid & Raivid the Court considered detailed evidence when considering the application, such as the claimant’s monthly expenditure, the amount of money in bank accounts and the levels of equity available in property.  Additionally, the judge stated that the application ought to be made within the 14 day period, although the Judge indicated that he would have been prepared to consider extending the 14 day period if there was a realistic prospect that substantial sums could be paid within the following few weeks and months. The Judge stated that under CPR Part 70 the court does not decide how judgments should be enforce, since it is up to the judgment creditor to do so and also stated that it should be an exceptional case where the court interferes with the rights of the judgment creditor.

In Gulf International Bank v Al Ittefaq Steel Products Co & Ors, the Court considered the application for a later payment, but decided that such applications are made rarely and normally only a one week extension would be given.

It is quite clear that the method of enforcement is not a matter for the Court nor for the defendant, it is a matter of choice for the judgment creditor. However, should a defendant wish to attempt to persuade the Court to order otherwise, it is advisable that such an application be made within 14 days from the date of judgment and that a proposal is made in which there is a realistic prospect that substantial sums could be paid within weeks or months. The defendant should also provide evidence of its inability to pay by reference to monthly expenditure and equity in assets.

Experience shows that an individual debtor before a District Judge, for example a single mother on benefits, is likely to be given more sympathy that a large commercial entity with assets, before a Master of the High Court.

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