Myth #4: You will be paid immediately once you obtain a money judgment from the Court.
For most clients and their lawyers there is nothing more exhilarating than winning a case at trial.
All of the hours dedicated to the matter have paid off and the client will no doubt be pleased.
However, obtaining a money judgment is only half of the battle. There is a common misconception that once you obtain a judgment you will be paid that sum immediately.
Unfortunately, in some cases, nothing could be further from the truth.
After obtaining a money judgment the successful party’s next skirmish to be fought is enforcing the judgment.
The reality is that enforcement can be very challenging, especially given the significant downturn in the economy over the last several years.
The party (or parties) who the judgment was obtained against (also referred to as Judgment Debtors) in a great deal of matters simply do not have the means to pay what is owed or may even refuse to pay.
This process can be extremely frustrating for the successful party (also referred to as the Judgment Creditor).
There are a number of different methods of enforcement that a Judgment Creditor can initiate to obtain the money owed to them.
The most effective way to determine the method of enforcement with the best chance of success is to submit an application to the Court for the Judgment Debtor to be examined on oath regarding his financial position. Following this, some of the methods of enforcement available to the Judgment Creditor are as follows:
1. Writ of Fieri Facias (Supreme Court) / Writ of Execution (Magistrates’ Court)
A Writ gives a Judgment Creditor the ability to have the Deputy Provost Marshal General (the Bailiff’s office) seize assets from the Judgment Debtor and auction them for sale.
This has historically been the most effective means of enforcement, but recently has been difficult due to the shrinking economy resulting in the Judgment Debtors simply not having assets of value to seize.
2. Garnishee Order (Supreme Court)
The Court has the ability to order that a Judgment Debtor’s funds held in bank account(s) or owed to them by their employer be paid directly to the Judgment Creditor.
This method of enforcement is only available in the Supreme Court.
3. Judgment Summons
A Judgment Summons requires a Judgment Debtor to appear before the Court to determine how payment will be made.
If the Court determines that the Judgment Debtor has wilfully refused to pay the judgment debt (in others words he has the ability to repay the debt but simply has chosen not to do so) the Court has the power to commit the Judgment Debtor to prison.
In reality, committal to prison rarely occurs and upon the hearing of the Judgment Summons a method of repayment is determined, i.e. weekly payments, monthly payments, various lump sum payments, payment in full within a certain timeframe, etc.
4. Attachment of Earnings Order (Magistrates’ Court)
During the hearing of a Judgment Summons, if it is determined that the judgment debt will be repaid by weekly or monthly instalments, the Court can order that the payments be made directly by the Judgment Debtor’s employer.
This provides more security to the Judgment Creditor to ensure payments are made.
While the enforcement process can be a long road for a Judgment Creditor, the key is to determine the most effective method of enforcement.
Whilst the money may not be obtained immediately, the persistent Judgment Creditor will get paid in the end.
Alexandra Wheatley is an associate who works with both the Litigation & Advice group and the Matrimonial & Family group at Marshall Diel & Myers Limited.