This study is concerned with what Professor Baldwin argues is the most critical issue presently confronting the civil justice system: the enforcement of civil court judgments. To what extent do the judgments of the civil courts lead to payment by defendants? Little hard evidence is available about the operation of enforcement procedures, and the argument in much contemporary debate tends to be based more upon anecdote and unsubstantiated assertion than factual evidence. It has, however, become increasingly evident in recent years that serious problems confront many claimants when they seek to enforce a civil court judgment and, when this happens, disenchantment with the civil justice system as a whole is a common result. There is a growing realization that, if public confidence in the civil courts is not to be undermined, the apparatus of enforcement needs to be overhauled.
Only a very small proportion of the vast numbers of civil claims that reach either the county courts or the High Court is defended and, in the study that is discussed in this report, the focus is upon those claims that end in 'default judgments' (i.e. those in which judgment is awarded automatically to the claimant because no defence to the claim has been submitted to the court in the time in which the defendant is allowed to respond). Such judgments have never been the subject of much debate in England and Wales although receiving payment is no less important to the claimants concerned than it is for those involved in defended cases.
The main issues that are explored in this study are whether defendants pay up where there is a default judgment; what claimants do when defendants fail to pay; whether the steps that claimants take to secure payment are effective, and, more generally, whether obtaining a default judgment is of any use to a claimant if the defendant chooses to ignore it. In carrying out the study, great difficulties were experienced in making contact with defendants who had been on the receiving end of default judgments. Indeed, the response rates achieved with defendants were regarded as being too low to justify detailed analysis of the results. However, 164 claimants (119 who had secured default judgments in the county court, 45 in the High Court) eventually provided details of their experiences. The response rates that were achieved - 68.8 per cent in the case of county court claimants and 73.7 per cent for the High Court claimants - were deemed highly satisfactory. The material that was unearthed in these interviews forms the basis of the study discussed in this report.
It has to be said that a bleak picture emerged as far as the effectiveness of enforcement procedures is concerned. Only a small proportion of the county court and High Court claimants included in the samples said that they had received full payment from the defendant in the time period specified in the court order. Nor did the steps taken to enforce default judgments prove very effective, since even when formal enforcement action was taken, the court judgment remained unpaid in most cases. The outcome was particularly unfavourable as far as the High Court cases were concerned. Indeed, in general the larger the sums of money at stake in these judgments, the less likely they were to be paid. Perhaps not surprisingly, the failure of most claimants to secure payment, whether in the High Court or the county courts, led to the expression of great frustration, disenchantment and bitterness in many of the interviews that were conducted.
Professor Baldwin concludes that a system in which over a half of default judgments result in no payment whatever to the claimant cannot be said to be working effectively. He does, however, concede that the many deep-seated problems of civil enforcement in England and Wales cannot easily be resolved. In the conclusion to the report, it is argued that the key to improving enforcement efforts in the future will be to ensure that the courts have adequate access to information about the financial circumstances of defendants who fail to pay money that has been ordered. This will enable courts to make properly informed decisions about the action that is needed in the light of the circumstances of the individual case.
Although it is accepted that the position of vulnerable debtors must be protected, the view is nonetheless taken in this report that the present balance between the interests of creditors and debtors is not struck in a satisfactory way. Professor Baldwin argues that it is of the greatest social importance that court-based enforcement mechanisms enjoy the confidence both of defendants and creditors. If the latter lose faith in the formal system of enforcement and turn to other methods of securing payment, the consequences may prove much more disagreeable and more intrusive for defendants (as well as offering them far fewer protections) than would a tougher court-based system