Enforcement tips and tricks – part one

Enforcement tips and tricks – part one

In the current economic climate and the international age in which we work, family practitioners increasingly face the need to enforce (both within this jurisdiction and abroad) orders made in financial remedy proceedings.  Lord Sumption acknowledged in Prest v Petrodel Resources [2013] All ER (D) 90 (Jun) that ‘in an age of internationally mobile spouses and assets’ enforcement in countries ‘which may not give direct effect to the orders of the English Court…is a more significant problem than it once was…’.

Enforcement is a complex topic with the relevant law scattered between a multiplicity of legislation and case law.  Below is the first part of a summary of tips and tricks that may make enforcement easier both in this jurisdiction and abroad.

Think early!

It is vital to think about enforcement from the outset of a case, as it is likely to have a bearing on key early decisions, including:

  • who to serve the Form A on
  • who to join to the proceedings; and
  • how to manage your client’s expectations eg if the total assets are £10m, but only £1m is in the jurisdiction, you may need to give your client unpalatable advice about the odds, and costs, of enforcing any order made by the English court against the offshore assets, depending on where the assets are located and how they are held

Family lawyers will want to ensure that any order made in this jurisdiction is worth the paper it is written on ie there is a good prospect of recovery (without prohibitive costs).

Remedies

A panoply of remedies is available to the enforcing party, as listed in this schedule.  Which remedy or remedies are appropriate will depend on:

  • the nature of the order and magnitude of the sum being enforced
  • the location of the assets
  • the evidence available to the enforcing party; and
  • the costs of the application

Consult the relevant legislation and case law when deciding which remedy to pursue and to ensure all legal and procedural requirements are met, as well as being alive to reciprocal enforcement treaties and regulations between this jurisdiction and other jurisdictions as these could have a significant impact on the prospects of recovery.  For this reason (and issues of brevity), I have not set out the substantive law in this blog post. 

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About the author:
Sophie Chapman is a solicitor at Withers LLP