Execution is the seizure of goods to enforce a civil court judgment.
Where a creditor has obtained judgment for a debt of more than £600 [note 1] and the debtor has not satisfied the judgment, the creditor may apply to the High Court for a writ of "fieri facias" ("fi fa") to seize goods. A writ of fi fa is the name given to a warrant of execution in the High Court. If the debt is for more than £5000 [note 2], the creditor must apply to the High Court, and cannot apply to a county court for the execution of the debt. This does not apply to the enforcement of an agreement regulated under the Consumer Credit Act 1974, which may only be enforced in the county court.
The writ will be executed by a High Court Enforcement Officer (HCEO). HCEOs replaced sheriffs in respect of this function with effect from 01 April 2004 [note 3].
England and Wales is divided into districts for the purposes of the execution of High Court writs, and at least one enforcement officer is assigned to each district. An enforcement officer who is appointed to the district to which the writ relates is obliged to accept the writ, and also has discretion to accept writs for anywhere in England and Wales, but may decline to accept the writ if it is for an area that he/she is not assigned to [note 5]. Judgment creditors are able to request that a particular enforcement officer acts in the execution of a writ, otherwise writs will be allocated for execution on a cab rank basis. A directory of High Court enforcement officers can be found on the High Court Officer's Association website, at www.hceoa.org.uk.
If a judgment debt (or agreed instalments in the judgment) has not been paid, the creditor may apply to the county court for a warrant of execution. A county court warrant of execution may be issued for a debt up to £5000 [note 6]. For a debt between £600 and £5000 the creditor has the choice of issuing a warrant in the county court or in the High Court [note 7]. This does not apply to the enforcement of an agreement regulated under the Consumer Credit Act 1974, which may only be enforced in the county court [note 8].
The warrant of execution is levied by the county court bailiff who is a salaried court employee. The district judge is responsible for the bailiff’s actions. The official receiver should not assume that because a bailiff has visited the insolvent’s premises, distress rather than execution has been levied (see Part 1 regarding distress) as he/she may visit for both purposes.
Any references to an officer charged with the execution of a warrant of execution in this part of the chapter should be taken to include a county court bailiff [note 9].
Local parking authorities can levy execution pursuant to the Enforcement of Road Traffic Debts Order 1993 for unpaid road traffic penalties. The local authority can issue a warrant of execution to be levied on the respondent’s goods to recover the debt and costs. A bailiff will carry out the warrant of execution. Any goods or money belonging to the respondent can be seized. Basic tools and household goods are exempt from execution. The goods seized must be held for at least 5 days before the sale.
A creditor can apply for a writ of "fi fa" or warrant of execution at any time up to six years after the date of the judgment [note 10]. Writs and warrants last for twelve months but can be renewed if application is made before the expiry of the original writ/warrant [note 11]. If the creditor comes to an arrangement with the debtor for payment of the judgment, then the writ/warrant can be withdrawn or suspended.
Any references to writ in this Part of the chapter should be taken to refer to a writ of fi fa and include a warrant of execution.
The officer charged with the execution can levy anywhere within the district or county to which the writ relates. A creditor may obtain writs in more than one district or county if it is believed that the debtor has goods in more than one district or county. See also paragraph 9.74. The writ gives the officer charged with the execution the power to seize and sell sufficient goods to satisfy the sum claimed on the writ. The officer charged with the execution should execute the writ as soon as possible. He/she is liable for damages to the creditor if he/she fails to levy through neglect, connivance or omission [note 12].
The officer charged with the execution usually sends the debtor a warning notice when the writ is received. This is to notify the debtor that the officer charged with the execution has acquired the legal right to seize the goods but the ownership of the goods remains with the judgment debtor until their sale.
A creditor can apply to the court for a "stay of execution" to prevent the sale and removal of goods. The court may grant the stay on offer of payment or may impose a moratorium for a fixed period of time.
The rule applying to an officer charged with the execution levying execution is that entry must be made without the use of force (see also paragraph 9.15). Execution can be levied at any time (Brown v Glenn  16 QB 254 per Lord Campbell @ 257) and can be levied, with permission of the court in an emergency, on a Sunday, Christmas Day or Easter day.
Goods, which have already been distrained upon, cannot be seized in execution (Edmond v Ross  9 Price 5 and Dicas v Warne  10 Bing 341). Goods already seized in a prior execution also cannot be seized unless the execution has been abandoned (Crowder v Long  8 B & C 598). If the prior execution is abandoned there is no need for actual seizure as the issue of the second writ binds the goods already seized under the prior writ.
Tools of the trade, books, vehicles and other items of equipment as are necessary for use in the debtor’s business, employment or vocation are exempt from seizure as are necessary household furniture, equipment and provisions to satisfy basic domestic needs [note 13].
A walking possession agreement is usually involved in execution, (see Part 1, paragraph 9.17 for details of walking possession). The officer charged with the execution will normally leave the debtor with a notice of seizure confirming what has happened. The notice of seizure contains the same details as a notice of distress (see paragraph 9.16 for the contents of the notice).
High Court execution
The enforcement officer is allowed to receive payment from the judgment debtor. If payment is made, he/she must withdraw from the possession as the execution is discharged.
The sale of the goods seized by the enforcement officer should be by public auction and not by bill of sale or private contract unless the court otherwise orders and should be publicly advertised on and during the three days preceding the sale [note 14]. The enforcement officer should allow a reasonable time before sale to give the debtor notice of the sale.
County Court execution
County court bailiffs are required to hold seized goods for five days before the sale at public auction [note 15]. The bailiff must give the debtor four days’ notice of the time and place of the auction [note 16].
An execution is complete where [note 18] –
Execution is not complete where the officer charged with the execution has withdrawn upon agreeing instalment payments with the judgment debtor or on payment of a lump sum by the judgment debtor or the judgment debtor pays the debt direct to the judgment creditor.
9.69 Costs of execution
The fees that are chargeable by enforcement officers are detailed in The High Court Enforcement Officers Regulations 2004 regulation 13 and schedule 3. The County Court Fees Order 1999 schedule 1 paragraphs 4 and 5 (as amended by the County Court Fees (amendment) Order 2003) details the costs of execution that are recoverable by the county court bailiff.
The officer charged with the execution can be sued by the judgment debtor or judgment creditor for –
The officer charged with the execution can also be sued by the judgment creditor for failing to act promptly or for failing to protect his/her interests (Slade v Hawley  13 M & W 757 and Pitcher v King  5 QB 758). The officer charged with the execution is likely to defend any such legal action through interpleader proceedings. Interpleader is a process where a person faced with competing claims for property, and who may be sued by different people in respect of those claims, may start an action in court to settle the claims.
Where the official receiver becomes aware of a possible wrongful execution he/she should follow the guidance in Part 1, paragraph 9.22.
Execution and Insolvency
The official receiver should, at an early stage in the insolvency proceedings, establish from the directors, bankrupt or, in the absence of these, the insolvent’s employees, whether any execution has been levied against any of the insolvent’s property.
Where the officer charged with the execution is in walking possession of the insolvent’s property, the official receiver should make no attempt to remove it until the officer charged with the execution has released the property to the official receiver, otherwise the official receiver could be in contempt of the court. Details of the circumstances when the official receiver can recover the seized property or their proceeds of sale are outlined in paragraphs 9.77 to 9.85.
Once the official receiver has established that execution has been validly levied he/she should obtain from the insolvent, or other third party, the following information:
NICEsheriffs stands for the National Information Centre for Enforcement. It comprises a central register and database relating to the execution of High Court writs, and was set up by the High Court Enforcement Officers' Association. The database (NICEsheriffs) and allocation of work to HCEOs is managed by Registry Trust Limited. This organisation receives notice of all bankruptcy orders via electronic transfer from the Insolvency Service and receives notice of all winding-up orders electronically from the London Gazette. It is, therefore, not necessary for the official receiver to send notice of insolvency orders to Registry Trust Limited.
In cases where an insolvency petition was presented before 6 April 2010, the Rules [note 20] state that the official receiver should deliver by hand, or send by recorded delivery, written notice of the making of an insolvency order to the appropriate HCEO in order that goods and/or money will be preserved for the insolvency estate. In practice HCEOs generally accept the electronic notification to NICEsheriffs as sufficient. In the event that the enforcement officer requires notice in writing, (for example, if he/she has taken goods in execution) [note 21] Registry Trust Limited will request the official receiver to send a notice [note 21A] complying with the rules to the HCEO acting in the execution.
In cases where the insolvency petition was presented on or after 6 April 2010, the Insolvency (Amendment) Rules 2010 permit notice of the insolvency order to be given to the enforcement officer by any means of delivery which enables proof of receipt of the document at the relevant address. This specifically includes giving notice by electronic means to any person who has been authorised to receive such notice on behalf of a specified enforcement officer or on behalf of enforcement officers generally [note 21B]. This amendment confirms that electronic notification to NICEsheriffs is sufficient notification to the HCEO to protect any goods or monies held by them.
The contact details are:-
Registry Trust Limited
173-175 Cleveland Street
9.74 Notification to the officer charged with the execution of the insolvency order - county courts
In respect of county court writs of execution, written notification of the making of an insolvency order and the appointment of the official receiver should immediately be sent or given to the relevant county court district judge [note 22]. Evidence of service of the notice should be retained to avoid possible difficulty if the proceeds of any sale are subsequently paid away.
A judgment creditor may obtain writs in more than one county to recover the judgment debt. The official receiver should serve notice on the county court district judge in each county in which the insolvent is believed to have property or has traded or resided in the previous six months.
If the official receiver becomes aware that the officer charged with the execution is in possession of the insolvent’s property, he/she should serve notice on the officer charged with the execution, by recorded delivery or any other means which allows proof of receipt at the relevant address, requesting delivery of the property and an account of the officer charged with the execution’s charges [note 21B] [note 23]. Where execution has been levied in more than one county and the executions are complete (see paragraph 9.68), the official receiver should ensure that the creditor has not been passed sale proceeds which would exceed the total of the debt and the costs of the executions.
(Amended December 2010)
Where property of the insolvent is about to be sold by the officer charged with the execution, the official receiver must take urgent action to ensure that the officer is aware of the insolvency order. If necessary this may mean that the official receiver has to serve notice himself/herself by hand [note 24]. Service of the notice upon an officer employed by the officer charged with the execution or an auctioneer instructed by the officer charged with the execution will not be sufficient (Hellyer and another v Sheriff of Yorkshire and another  2 All ER 712; Re Bishop ex parte Langley  13 Ch D 110 CA). If it is not possible for the official receiver to serve the notice himself/herself, he/she may instruct a local solicitor to do so provided that there are adequate funds in hand (or sufficient funds are expected to be available from the recovery of assets, in which case sanction of Technical Section must be obtained to incur a debit balance to discharge the solicitor’s costs). Evidence of service of the notice must be obtained. Once the notice has been served, and if the official receiver is of the opinion that the arranged sale should proceed for a more beneficial realisation, e.g. to avoid a risk of substantial expenditure in re-arranging a sale for a later date, then he/she may allow the arranged sale to continue (see also paragraph 9.82).
Where the execution has been completed (see paragraph 9.68) prior to the commencement of the insolvency proceedings, the judgment creditor will be entitled to retain the benefit of the execution [note 25]. If the officer charged with the execution still holds the proceeds of sale or property when he/she receives notice of the insolvency he/she must pass the funds or property to the liquidator or trustee (see paragraph 9.84) as the execution has not been completed (Bluston & Bramley Ltd v Leigh  2 KB 548) [note 26]. Any monies paid to the judgment creditor by the insolvent prior to the commencement of the insolvency to avoid an execution may be retained by the creditor. The court may set aside the provisions of sections 183(1) and 346(1) [note 25], but it is unlikely that the court would allow an execution creditor to gain an advantage in this way [note 27].
Any execution levied after the commencement of a winding up by the court is void against the company’s liquidator [note 28]. Any property or proceeds of sale held by the officer charged with the execution should be passed to the liquidator. Additionally, any proceeds of sale passed to the judgment creditor should be recovered and in both cases the judgment creditor can prove in the liquidation [note 29]. Where a voluntary liquidation precedes a winding-up order, the execution creditor will not be able to retain the proceeds of the execution if he/she had notice of the proposed voluntary liquidation before the completion of the execution [note 30] (Re Caribbean Products (Yam Importers) Ltd  1 All ER 181). The court can set aside the provisions of section 183(1) [note 30] but it is unlikely that the court would allow an execution creditor to gain an advantage in this manner [note 31].
Where the insolvent has agreed to pay a debt by instalments in return for an execution not being carried out, the judgment creditor may retain any payments made prior to the commencement of the insolvency (Re Samuels  Ch 341). The same applies to any single payment to avoid seizure.
If the official receiver discovers that only a writ has been issued, any payments made by the debtor after the commencement of the winding up should be recovered by the official receiver in his/her capacity as liquidator.
If payments have been made by the officer charged with the execution to the judgment creditor after the date of the bankruptcy order, but before the officer charged with the execution has received any notice of the order, the official receiver should try to recover such monies from the judgment creditor. If difficulties are encountered in recovering such monies, Technical Section should be consulted.
If the officer charged with the execution is in possession of property, the official receiver should request him/her to deliver the property to the official receiver, who should arrange disposal [note 32]. The official receiver must ensure that there are no third party claims to the property e.g. a retention of title claim or, in bankruptcy cases only, a landlord (see paragraph 9.86). The director or bankrupt should be asked whether any third party property was amongst the property seized. Once the official receiver has requested delivery of the property, he/she may agree to an arranged sale of the property by the officer charged with the execution’s agent proceeding, if it will result in a more beneficial realisation (e.g. to avoid possible heavy expenditure on arranging a new sale or to avoid incurring additional storage charges). The officer charged with the execution should not be allowed to proceed with the sale if only part of the insolvent’s assets have been seized and the sale of the whole of the assets together would be more advantageous.
If there is a possibility of the insolvency order being rescinded, appealed, stayed or annulled, the officer charged with the execution should not be allowed to proceed with the sale [note 33]. Where there is likely to be a delay before the hearing, the official receiver may proceed with the sale if the judgment creditor, directors and bankrupt have agreed to the sale. If agreement cannot be obtained and the official receiver is concerned at the storage charges being incurred, he/she should apply to court for directions [note 34]. The costs of the execution, whether arranged by the official receiver, or the officer charged with the execution, are a first charge on the proceeds of sale [note 35].
If the judgment debt is greater than £500 in a company case or £1000 in a bankruptcy case, the officer charged with the execution must hold the sale proceeds for 14 days from the date of the sale [note 36]. If the judgment debt is less than the prescribed amount, but the addition of the legal expenses (e.g. officer charged with the execution’s charges) result in the amount outstanding to exceed the prescribed amount, the officer charged with the execution must also hold the sale proceeds for 14 days (Re Brubb ex parte Simms  5 Ch D 375).
If the officer charged with the execution receives notice of an insolvency petition (or, in the case of a company, notice of a voluntary winding up) within the 14 days, then he/she must hold the funds for the liquidator or trustee should an insolvency order subsequently be made. If notice is received after the 14 days have expired, the judgment creditor is entitled to receive the proceeds of sale (Marley Tile Co Ltd V Burrows  QB 241).
If the officer charged with the execution is holding funds when he/she receives notice of the appointment of a provisional liquidator, voluntary liquidator or interim receiver, or that a winding-up order or bankruptcy order has been made, the funds will be payable to the liquidator or trustee [note 37]. If the proceeds are paid to the judgment creditor despite the officer charged with the execution receiving notice, the officer charged with the execution may be sued by the liquidator or trustee (Notley v Buck  8 B&C 160). The officer charged with the execution may in turn sue the judgment creditor (Re Husband  LR 19 Eq 438).
In company cases the official receiver should recover any moneys held by the officer charged with the execution to which the liquidator is entitled to unless an insolvency practitioner is likely to be appointed [note 38]. In bankruptcy cases, even if there is likely to be an insolvency practitioner appointed, the official receiver should recover the moneys if the landlord has a claim against the bankrupt, because the landlord can serve notice upon the officer charged with the execution making a claim for rent even after the officer charged with the execution is aware of the bankruptcy order [note 39] . The officer charged with the execution is entitled to retain the costs of the execution and pass the balance of the sale proceeds to the liquidator or trustee (see paragraph 9.86).
If a winding-up order is made against a partnership, the official receiver should seek to recover any goods or moneys in accordance with paragraphs 9.79 to 9.84 [note 40]. Any execution levied after the commencement of the winding up will be void.
The official receiver, as trustee, should attempt to recover the proceeds of any incomplete execution where the partnership is being wound up by the trustee of the partners following bankruptcy orders against the partners based on a Form 16 petition [note 41].
Where there are bankruptcy orders against all of the partners, but no winding-up order against the partnership (other than a Form 16 petition), and an execution has been levied against the partnership, the official receiver may be unable to recover the property or the sale proceeds. To recover such property or proceeds, the official receiver will need to show that the judgment creditor is a creditor of the partners and that execution has been levied against the assets of the partners. Since a partnership has no legal rights or liabilities of its own, the judgment creditor is strictly speaking a creditor of the partners. A partner’s share of the partnership may be described as a "beneficial interest" in the partnership assets. The official receiver should attempt to recover the property or proceeds on this basis but if the execution creditor disputes this approach, no further action should be taken without reference to Technical Section.
A judgment creditor may not levy execution against partnership assets in respect of partner’s debts but may seek a charging order over the partner’s share of the partnership assets (see Part 4).
If an officer charged with the execution is in possession of the insolvent’s property under an execution, no creditor with the right to distrain can do so because the property is under the custody of the law. A landlord can notify the officer charged with the execution of his/her claim for arrears of rent. When the officer charged with the execution receives such a notice from the landlord, he/she must not remove the property until the landlord has been paid what is due, which should not exceed one years’ rent. If the landlord did not give notice to the officer charged with the execution until after the commencement of the bankruptcy, the amount payable to the landlord will be reduced so that it does not exceed six months’ rent accrued due prior to the date of his/her notice to the officer charged with the execution [note 42] (see paragraph 9.47 for details of calculating rent which has accrued). Any amounts due to the landlord, which exceed those outlined above, may be claimed in the bankruptcy.
If the officer charged with the execution sold the property before he/she received notice from the landlord, and a bankruptcy order is later made, the officer charged with the execution must pay the landlord what is due to him/her, not exceeding one year’s rent (Re Mackenzie, ex parte Sheriff of Hertfordshire  2 QB 566). Where a judgment creditor pays the rent himself/herself, and execution is later avoided by bankruptcy, the officer charged with the execution must deduct the amount paid and hand it to the judgment creditor before accounting to the trustee (Re Craig & Sons, ex parte Hinchcliffe  2 KB 497).
If necessary the official receiver should make enquiries of the officer charged with the execution to ascertain details of any rent which is being claimed by the landlord [note 43]. If the value of the property or the amount of the proceeds of sale does not exceed the amount due to the landlord, the official receiver need not serve notice upon the officer charged with the execution to deliver up the property or proceeds of sale. If payment has already been made to the landlord for rent arrears and the official receiver believes that an incorrect amount has been paid, the officer charged with the execution will be under no liability to the trustee [note 44], but the official receiver should seek to recover the excess payment from the landlord, who may prove in the bankruptcy for that amount.
A judgment creditor is entitled to prove in the insolvency for any unrecovered costs of his/her execution [note 45]. He/she cannot do so where the insolvency intervened in the execution so that the costs are a charge on the proceeds of sale or if the officer charged with the execution has deducted his/her costs before accounting to the liquidator or trustee for the proceeds of sale [note 46]. If execution was levied after the commencement of the winding up, the judgment creditor is unable to claim in the winding-up proceedings for the costs of the execution [note 47]. The officer charged with the execution is not entitled to claim in the proceedings but must look to the judgment creditor to discharge any shortfall in his/her costs, and the creditor may make a claim for those costs.
Whenever the official receiver is able to recover the goods or their proceeds of sale for the benefit of the estate, subject to the officer charged with the execution’s costs [note 48], the official receiver should request details of those costs [note 49]. If the official receiver considers the costs excessive he/she should ask the officer charged with the execution to provide an adequate explanation of any disputed item. If the officer charged with the execution is unable to do so, and also refuses to adjust his/her costs, the official receiver may require, in writing, that the amount of the officer charged with the execution’s bill of costs be subject to detailed assessment (see also Chapter 39, Part 1 - Detailed Assessment). See paragraph 9.69 for details of the legislation governing enforcement officer's and county court bailiff’s costs. The officer charged with the execution is under a statutory duty to prepare his/her bill of costs for detailed assessment. If, after detailed assessment, the item is disallowed, the amount should be recovered from the officer charged with the execution.
Where the creditor’s debt is not provable in the bankruptcy the creditor may continue proceedings after a bankruptcy order with permission of the court [note 50]. The judgment creditor is restricted to levying execution upon property acquired by the bankrupt after the date of the bankruptcy order, which has not been claimed by the trustee at the time the writ was delivered to the officer charged with the execution to be executed [note 51]. Under the Supreme Court Act 1981 section 138, or the County Courts Act 1984 section 99, the writ binds the property of the debtor from that time i.e. the time the writ was delivered. Where the property of the bankrupt has not been removed from his/her premises, it is important that the official receiver (or any insolvency practitioner who may subsequently be appointed) can provide details of the property which vests in the trustee. This will normally be from the production of the inventory taken during the inspection of the premises or by providing a copy of any notice claiming an asset which was acquired after the date of the bankruptcy order. Where a writ is delivered to the officer charged with the execution after the bankruptcy order but before the appointment of a trustee (so the property has not vested in the trustee), the judgment creditor may be able to claim sufficient property in the bankrupt’s estate to discharge the judgment debt [note 52]. If the official receiver encounters difficulties in dealing with a judgment creditor, who has a non-provable debt in the bankruptcy, then Technical Section should be consulted.