Preventing stays of execution
by David Carter on 04 May 2011
A judgment debtor may think that he can stop the execution of a writ of fieri facias (fi fa) simply by applying for a stay of execution (i.e. a request for an order to stop the judgment from being enforced).
However, he may well find this harder than he thinks, as stays of execution may only be granted in limited circumstances:
- Where there are special circumstances which render it inexpedient to enforce the judgment
- When the defendant is unable in any way to pay the money owed
- When the defendant has lodged an appeal (he has to be able to demonstrate valid grounds for his appeal)
Preventing a stay of execution
There are measures the judgment creditor can take to prevent the defendant from having grounds for a stay:
- Ensure that papers are properly served; consider using a process server and obtaining a signed affidavit that the papers have been served on the defendant
- Check ownership of goods to be seized as thoroughly as possible to prevent interpleader action
- Be open to payment by instalments so that the defendant is unable to claim he is unable to pay
Even if a stay of execution is granted, this is frequently only a delay while the court checks through the case. In many cases, once the stay is lifted, successful execution will then take place.
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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.
