Thursday, 18 May 2017

Late charge

Charging orders have long been an important tool in the enforcement and asset recovery kit. Procedure has “evolved” over the years.

I can remember a time when these applications were governed by the provisions of the County Court Practice (aka “The Green Book”).  The remarkable feature then was that a hearing would always be listed, as a matter of routine, to decide whether the initial order nisi should be made absolute.

In the nineties (whoops!) I led a team of people dealing with enforcement work including charging orders.  Every week we would organise attendances at hearings where the debtor did not turn up and the charging order was confirmed along with fixed costs that never covered the actual expense of being prepared to deal with whatever happened.

I wrote to the chief clerk (sic) of our favourite and most-used local court suggesting that a better system would be to require the debtor to give notice if he or she intended to oppose the making of a charging order absolute.  If they did so, we would have a hearing in the usual way.

If they didn’t give the requisite notice at least seven days before the hearing, we could simply rely on a request for the charging order to be made absolute in absence.  If the debtor then turned up, having failed to give notice, the application would be either granted or adjourned.

The suggestion was quickly accepted and implementation followed in a number of other courts and was later adopted within the CPR.  It’s basically what then happened for a number of years until last April.

Now we have a new system whereby all charging order applications have to be made to the CCMCC in Salford, following the lead of the requirement that all “money claims” be issued out of that court rather than local county courts.

Now the procedure is that after an interim order is made and served within 21 days, we wait another 28 days to see if the debtor has any objections.  If by the end of “Day 49” no objection has been filed, the court will make a final order without the need for a hearing.

So, it gets better and better… or does it?

Here’s the message that we received from the CCMCC in response to the latest enquiry last week about an overdue order:-

We are aware that there is a delay in the receipt of final charging orders after “Day 49” pursuant to the centralisation of charging orders protocol.  Currently it is taking around 33 days for you to receive a final charging order from day 49.  We apologise for this delay and are doing our upmost (sic) to address the situation to bring it back in line with the protocol.  We are working closely with the judiciary bringing extra DDJs into the business to work through the increased amount of work which has built up.”

We are not aware that there is any objection in this case.  So what is it taking nearly five weeks to do?

The answer would appear to be to “rubber stamp in the absence of any objection from the debtor the interim charging order that was made perhaps as long as three months ago or longer”.

How can such a seemingly simplified system have become so wretchedly ineffective? Why does it need to go “on the shelf” (Lord Briggs, are you there?) and wait for a judge to look at it?

Charging orders couldn’t be simpler in most cases. If the judgment is unpaid and the debtor owns the property – bingo.

Like all the other changes, including the 660% rise in court fees, this is an innovation aimed at achieving greater efficiency. Actually it’s all part of a system which is costing the user more and delivering shrinking benefits.

Meanwhile I cheer, ironically, as a notice of issue of a claim form arrives. The notice itself confesses that our proceedings were received at the CCMCC on 21 April – 4 weeks ago.

As Gladstone said, justice delayed is justice denied. 

No comments: