You may hear the phrase Writ of Execution in your travels and wonder what exactly it means. In modern-day terms, it sounds like something straight out of Game of Thrones, but a Writ is real – GOT is not.
Writ of Execution
A writ of execution is a court order granted to put in force a money judgment of 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 remunerated 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 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.
The Writ of Control is the most popular of all the High Court Writs which are issued. We are very proud here at Shergroup that we invented the process for the mass transfer of CCJs into Writs of Control that you see across many enforcement businesses today. The Writ of Control makes up one of a series of Writs going back over the centuries to create the instrument to compel compliance with the Court’s Order. The full complement of all Writs includes:
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Writ of possession (to enforce possession orders – and used by landlords and property owners)
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Writ of restitution (to re-enforce possession order – and again used by landlords and property owners)
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Writ of delivery (to enforce orders for the delivery up of goods or their value – and used by judgment creditors and brand owners)
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Writ of sequestration (very rare – but another form of Writ available to judgment creditors)
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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.
Writ of Delivery | Enforcement of a Money Judgment
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.
Writ of Sequestration | Enforcement of a Money Judgment
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.
A more recent case – but still nearly 40 years old is 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.
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.