What is a Writ of Execution?

Writ of Execution

A writ of execution is a court order granted to put in force a money judgment or possession order obtained by a claimant from a court. When issuing a writ of execution, a court typically will order a High Court Enforcement Officer (formerly known in England and Wales as a Sheriff’s Officer) to take possession of property owned by a judgment debtor. Such property will often then be sold in a sale organised by the HCEO and the proceeds paid to the claimant in partial or full satisfaction of the judgment. A writ of execution may be used for bankruptcy proceedings and eviction claims.

English Common Law

Where the English common law has been exported through history then writs of execution are often part of the legal system of the justice system in that state and the effect is often the same – to enforce the court’s order.

Since the mid-1990’s the Government for England and Wales has been re-engineering the landscape for enforcement service delivery. Strangely the word “Writ” has been retained in a world where Sheriff has been excluded as being “old English”. Writs, which can trace their birth back to before 1066 AD, have escaped reform.

Writ of Control

In 2014 the system of English and Welsh enforcement saw the introduction of Regulations to deal with the Taking Control of Goods. This, in turn, changed the old English term of Writ of Fieri Facias (or Fi Fa as it was more commonly known) into a Writ of Control. Its counterpart in the county court system of enforcement is the Warrant of Control.

• Writ of possession (to enforce possession orders – and used by landlords and property owners)

• Writ of restitution (to re-enforce possession order – and again used by landlords and property owners)

• Writ of delivery (to enforce orders for the delivery up of goods or their value – and used by judgment creditors and brand owners)

• Writ of sequestration (very rare – but another form of Writ available to judgment creditors)

• Writ of assistance (used to support the enforcement action under the main Writ – and rarely used but still in the CPR)

Together this set of Writs are known as “Writs of Execution”. Separately they do very different things.

Writ of Possession | Enforcement of a Possession Order

This Writ is used to enforce possession of land or buildings and can be “in-rem” (against the world) or “in personam” (against a person).

Enforcement against trespassers who are not known to the Claimant is “in-rem” and the Writ allows the landowner to recover possession of the land covered by the Writ.

Enforcement against named trespassers or tenants is “in personam” and allows the landowner (usually a landlord) to enforce possession against the people named on the Writ. It will be issued following proceedings for possession – whether at county court or High Court level. If the order for possession is granted in the county court – permission will have to be granted under Section 42(2) of The County Courts Act 1984 for the possession order to be enforced in the High Court.

Possession Orders made in the High Court can be immediately enforced by the HCEO once any time limit has expired.

Writ of Restitution | Re-enforcement of a Possession Order

Writs of Restitution are rare but come into play to support a claimant who has taken back possession under a Writ of Possession but has then seen the property trespassed again. This Writ “restores” the position to enable the claimant to go back and take back possession. The Writ is handed to an HCEO to do this on the claimant’s behalf.

Enforcement of a Judgment for Delivery of Goods

This Writ is used by claimants to recover specific goods that have not been fully paid for, and the debtor has a balance outstanding which needs to be cleared. Usually, these Writs are used by finance companies in relation to vehicles. The Writ of Delivery allows the claimant to recover the vehicle rather than trying to recoup the outstanding arrears.

Enforcement Following Contempt of Court

As sequestration is a form of contempt the Court Rules in relation to this type of Writ state that it could only be issued with permission of the court when granted by a judge on an application duly served and supported by evidence.

If a judgment debtor who is found to be in contempt of a court order fails to comply with that order within a specified time, the judgment creditor may, in certain circumstances, be entitled to a writ of sequestration to obtain payment.

Writ of Assistance

This is issued where it has proved impossible or will prove impractical to execute a normal writ of delivery or possession. As a writ of delivery is executed in a like manner to a writ of control there is no authority to force entry to a private address. One reference to the use of this Writ is that in the early 20th century a writ of assistance was issued to allow a Sheriff to force open a safe where the claimant believed documents, the subject of the writ of delivery, were kept. The Writ of Delivery needed the Writ of Assistance in order to open the safe.

Capscan v Steiger (1984) is now over 40 years old, where a writ of assistance was directed to the Sheriff of Greater London, to allow the Sheriff access to a computer to remove data from the computer’s memory – see Capscan Ltd v. Steiger Computers Ltd (1984) unreported. Anecdotal references by former Sheriffs discuss the use of the Writ of Assistance where Sheriffs have had the conduct of a writ of assistance to aid in the enforcement of a writ of possession where a mortgage defaulter has continually re-entered the mortgaged premises after eviction.

The mode of execution of this type of writ will follow according to the directions it contains but in general, it is unlikely to be completed in a simple manner. The writ will probably direct the HCEO to enter the premises, with force if necessary, and to ensure that the claimant regains and retains peaceful use so as “to maintain and keep him and his assigns in such peaceable and quiet possession …”, of the goods or land to be delivered. Where a writ of assistance is issued in aid of a writ of possession or delivery, it may be executed as often as is necessary to keep the claimant in possession of the land or goods.

FAQs

What is a writ of execution?

A writ of execution is a High Court order authorising an enforcement officer to recover a judgment debt. It names the parties, states the sum due and gives the officer authority to take control of the debtor’s goods.

What types of writ of execution are there?

The main writs of execution in England and Wales are the writ of control, writ of possession, writ of restitution, writ of delivery, writ of sequestration and writ of assistance. Each does a different job, from recovering judgment debts to enforcing possession orders and returning specific goods.

What is the difference between a writ of control and a warrant of control?

A writ of control is issued in the High Court and enforced by a High Court Enforcement Officer. A warrant of control is its county court counterpart. Both authorise taking control of a debtor’s goods under the Taking Control of Goods rules introduced in 2014.

What replaced the writ of fieri facias?

In 2014, the Taking Control of Goods regulations in England and Wales replaced the writ of fieri facias, known as a writ of fi fa, with the writ of control. The writ of control is now the most commonly issued High Court writ.

Can a county court possession order be enforced in the High Court?

Yes. A county court possession order can be enforced by a High Court Enforcement Officer once permission is granted under section 42(2) of the County Courts Act 1984. Possession orders made in the High Court can be enforced once any time limit has expired.

What is a writ of execution?

It is a High Court order authorising an enforcement officer to recover a judgment debt. It names the parties, the sum due and the officer, and gives authority to take control of the debtor’s goods to satisfy the judgment. 

What is the difference between a writ of control and a writ of execution?

Writ of execution is the general term for the High Court’s enforcement authority. A writ of control is the specific writ used to take control of goods. In everyday use the two are often spoken of interchangeably

Who can enforce a writ?

In the High Court, an authorised High Court Enforcement Officer, or an enforcement agent acting under their authority. The writ names the officer, and only that officer’s agents may act on it.

How long does a writ stay valid?

A writ of control is valid for twelve months from issue and can be extended on application to the court before it expires.

Is a writ of sequestration used to collect a debt?

Not normally. A writ of sequestration is a contempt remedy used where a party has disobeyed a court order. It is a different remedy from a writ of control, which is the ordinary High Court route for enforcing a money judgment. 

What can an enforcement officer take control of? 

Goods belonging to the debtor that are not exempt. Tools of trade up to the statutory limit, basic household items and goods belonging to someone else are outside the power.

Summing Up

In today’s market for enforcement services, there is no need for claimants to vex about the choice of Writ. High Court Enforcement Officers know the best Writ for the situation that is presented to them. Shergroup takes a pride in continuing to innovate its expertise in how Writs can be used to support the outcome that the creditor/claimant wants to achieve. The Writ of Execution in its broadest sense is a legal tool that unlocks the problem of enforcement in many situations and has shown itself to evolve as a society and the law has moved forward.