Charging orders and writs of fi-fa
by David Carter on 07 April 2011
Here at The Sheriffs Office, I am often asked by clients whether they can still use High Court enforcement via a writ of fieri facias (fi fa) if they already have a charging order against a debtor.
Once the judgment creditor has obtained a judgment, he can apply for a charging order against property or land fully or partly owned by the judgment debtor. The charging order means that the creditor will be paid the debt plus interests and costs if and when the property is sold. All joint owners and other secured creditors, including the mortgage lender, must be served with the application for the order. A charging order can also be made against shares.
The writ of fi fa instructs the High Court Enforcement Officer (HCEO) to seize goods and chattels, as opposed to the charging order which is against land, property and shares.
Applying for a writ of fi fa after the charging order
A charging order can be a long term approach to debt recovery.
There is nothing to preclude the creditor from applying to transfer the judgment to the High Court for enforcement using a writ of fi fa, and having a charging order in place at the same time. It may be that the debtor’s circumstances have changed and there are now assets available for seizure that may have not been available at the time of judgment and application for the charging order.
If the creditor does instruct an HCEO to apply for and enforce the writ of fi fa, any debt recovered will reduce the amount owed under the charging order. If the entire debt, court fees, enforcement costs and interest are recovered, then the charging order will be discharged.
Applying for the charging order after the writ of fi fa
It can also work the other way round. If the creditor applies for the writ of fi fa first and the HCEO is unable to enforce, or only partially recovers the debt, then the creditor may subsequently apply for a charging order.
In most cases, unless there really are no assets to seize, the writ of fi fa costs less than the charging order and is likely to result in a speedier debt recovery. But the two debt recovery options are not mutually exclusive.
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Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of England and Wales frequently changes. The author strongly advises the reader to take legal advice before embarking on any enforcement action.
