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Enforcing award over stabbing

My partner was stabbed when he intervened to stop a person being stabbed in the neck in a row over land. He received thirty-five stitches to his face. He was eventually awarded substantial damages. A judgment mortgage is to be registered on the assailant’s land. Some people have told us that a judgment mortgage is worthless in that it burdens the land but if not enforced my partner will never get his money. What options has he? The assailant is self-employed; he has some land – with land sales falling it is unlikely he will be able to sell, as the land is swampy. If he approaches his assailant and asks for a weekly instalment his assailant will probably simply refuse. What can he do to realise his money? He now feels he should have not bothered intervening even though he probably saved a person’s life. Listener wishes to remain anonymous.

Firstly let me congratulate this listener’s partner for saving the person’s life.  I hope that the assailant was also charged with the criminal offence of assault with a deadly weapon and spent some time in prison.  When criminal cases come to trial a guilty party is usually invited to show how remorseful they are by producing compensation and if they do some measure of leniency will be shown to them.

A judgment mortgage, which this listener’s partner has or is about to register, is very similar to a building society mortgage in that if the amount is not paid the Court can be asked for a “Well Charging Order” – that is, to approve the registration process and appoint a receiver over the lands for the purpose of sale.  Even if that doesn’t happen, the judgment mortgage remains registered as a burden on the property for a twelve year period and the owner cannot sell or otherwise deal with the property within that time without discharging the judgment mortgage.

What is also open to this listener’s partner is to enforce the judgment debt.  I presume the listener has already asked her partner’s  Solicitor to send in the Sheriff to seize goods and perhaps cattle and the assailant’s car.

It is also open to bring an application to the District Court for an Examination and Instalment Order where the means of the assailant is examined and an order to pay a stipulated amount each week can be made.

As an alternative (and we discussed this last week) if the listener knows that the assailant has debts due to him or her, the listener can apply to the Court for an order of “garnishee” which is an order directing any third party who owes the assailant money to pay the money directly to you the listener’s partner. The assailant has land and may be in receipt of “Set-aside” payments from the EU and these payment might be available for garnishee by order of the court.

Finally the listener can apply to the High Court for an order in Bankruptcy – in other words, to make the assailant bankrupt – in which case an Assignee – just like a receiver or liquidator of a company – will be appointed to take over all the assets of the assailant for whatever value can be obtained irrespective of the protests of the assailant.

The issues raised in the answer to this NewsTalk listener's question are dealt with in a general way as can only be the case on live radio. Before relying on the advice given in this answer, whether you heard the broadcast or are for the first time reading the issues here please do not rely on the broad advice given. For a detailed professional opinion please consult a qualified legal advisor and for further details read our disclaimer on the Home Page.

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