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How Can I Enforce a Court Order?

Once you have got a court order (a judgement and remedy in your favour) you may need to take steps to ensure it is carried out.

1

What Am I Enforcing?

There are many different types of court orders. The most common are;

  • Orders (or “injunctions”) requires someone to do or stop doing something
  • Orders requiring payment of money (or “damages”)
  • Declaratory judgements, and structural remedies (e.g. law reform)

Each type of order has its own challenges and rules for enforcement.

If you feel a court order is not being obeyed, the first question to ask is;

  • Is the court order enforceable?

Sometimes, more action or another court order is needed for the original order to be enforceable.

  • E.g. If a court decides you are entitled to compensation, this is unenforceable and of no practical use. You will need to get the court to assess how much compensation you are entitled to before you can demand enforcement.

Some orders are broad, others are precise.

  • E.g. An order demanding law reform is much broader and less specific than an order demanding an exact sum of money to be paid by a certain date.

The more precise and detailed the order, the easier it is to know if the order is being obeyed or breached.

For example;

  • “Members of the Aymara (an indigenous group) should be permitted reasonable access to ancestral lands for religious purposes”
    Compared to,
  • “The members of the Aymara listed in Schedule A, shall be permitted to access any part of the land shown on the plan at Schedule B, for a period not exceeding 8 hours in any one visit, at the times and on the dates listed in Schedule C”

In the second example, the entitlements of the Aymara are much clearer and more detailed. Therefore, it is easier to see if the order is being followed. In the first example, there is room for argument as to whether the judgement is being obeyed.

If you have obtained an enforceable court order and there is a clear breach of the court order, the breaching party may be committing a criminal offence (sometimes known as being in “contempt of court”).

  • This may lead to police action, prosecution, fines, or imprisonment.
  • You will need to find out what the correct procedure is to get the responsible authority to act.

For more information on types of court orders, see “What Remedies Are Available?

2

Enforcing a Court Order: Injunctions

a) Notifying the Party

If you have got an injunction, the first step is to make sure that everyone who needs to take action is aware of the order.

You should communicate the terms of the order to:

  • The most relevant people within the company/ministry concerned.
  • Other persons or organisations involved in the activity in question.
  • Anyone affected by the order who is involved in enforcing it.

In some countries, there are “bailiffs” whose job it is to officially notify the relevant parties of court orders.

  • If the court order is delivered by a bailiff, the recipient can’t deny knowledge of the order.

Sometimes, enforcement requires action by someone other than your opponent in court. Make sure every party who needs to take action is notified;

  • E.g. To enforce an order against one government ministry, you may need to contact another ministry.
  • E.g. To enforce an order against the “Head Office” of a company, you may have to contact the company’s operations department or their contractors.

 

b) Challenges to Enforcement

Sometimes, people against whom orders are made deliberately try to avoid carrying out the order by;

  • Referring you to the wrong department within the company or ministry, creating confusion.
  • Pretending they do not know about the order.
  • Launching appeals against the order, even if they know they can’t win.

Example
In Nigeria, local communities successfully got a court order against Shell to stop its practice of “gas flaring” (burning off natural gas), which had caused deaths and pollution.
Shell failed to obey the order, instead launching a range of speculative unsuccessful appeals to delay enforcement. Contempt of court proceedings were launched, but difficulties in the Nigerian legal system resulted in the files being lost. To this day, gas flaring still occurs in Nigeria.

While enforcing an order against a powerful company/government can be difficult, requiring a lot of persistence, but there are steps you can take to help;

  • Bringing contempt of court proceedings
  • Campaigning to raise public awareness about the failure to obey a court order

Practical Tips
To prevent claims of ignorance, contact whoever needs to take action in writing (by letter or email or fax) and record that you have done so.

You may need to research the names and contact details of senior management/top personnel these are often hidden.

If in doubt, address the letter generically to “The Minister/Ministry” or “The Company Secretary/Managing Director”. This minimises the risk of an organisation claiming ignorance of an order.

3

Enforcing a Court Order: Compensation

Enforcing an order for compensation will be easier if the order;

  • Is clear how much has to be paid (including whether interest is payable)
  • Is clear when compensation has to be paid (including in what installments)

If this is not the case, you may need further clarification from the court.

 

a) Does the Party Have the Money to Pay?

An important question is whether the party who has to pay actually has the money required or can raise it.

If not, you will not be able to enforce the order unless they borrow it from elsewhere or you can persuade or lawfully make someone else pay for them.

  • E.g. An associated company of the company concerned, or a relative of the person concerned, or someone who owes them money, could pay on their behalf.

 

b) Enforcing Payment

Some legal systems have specific mechanisms to enforce payment.

The claimant or a public authority may be able to;

  • Freeze money or property belonging to the paying party or money owed to that party by someone else (this means the party can’t use the money or property).
  • Seize property or money of the paying party.
  • Start proceedings to declare the paying party bankrupt, or put a company in liquidation or receivership so that its assets will be managed by someone else.

For companies who operate and have assets in different countries, enforcing a judgement may require creative thinking, involving actions in different courts.

Example
Following the Ecuador Supreme Court ordering Texaco/Chevron to pay $9.5 billion in compensation for environmental damage, claimants have brought a case in Canada to freeze Texaco/Chevron’s Canadian assets, in order for the compensation to be paid.

Even if the party concerned has the money, they may not pay or try to avoid paying;

  • Some parties try to hide their assets. Tracing assets abroad, or in hidden accounts, or in other people’s accounts, may be possible but is highly technical, often expensive and time consuming, and will require professional assistance.
  • Parties may bring appeals or actions in other courts to resist paying.

Example
In the Ecuador case, Texaco/Chevron have used US courts and international arbitration to get legal approval for refusing to pay the courts’ judgement.

If it is difficult to enforce a payment order against a particular party, it may be possible to enforce an order against associated companies, shareholders, directors, or insurers of the party concerned.

  • It may be easier to enforce your order against other parties. But this is a complex process.

It may be possible to involve the police or the authorities to take action against a party who fails to obey a court order to pay money. They might be prosecuted or fined or imprisoned.

4

Enforcing a Court Order: Declaratory Judgements/Law Reform

Sometimes an order may declare that certain conduct is lawful or unlawful, or that certain people have specific rights or obligations, but not order specific actions to be taken;

  • E.g. “it is lawful for the residents of X community to protest peacefully on the public highway in relation to the proposed mining project at Y”
  • E.g. “it is unlawful for the Ministry of Z to grant licences to log the forest at K without consideration of an Environmental Impact Assessment complying with Schedule C of the Logging Act 2008”
  • E.g. “law X discriminates against women, who have a right to equal pay”

These declarations do not clearly call for a certain action stop or for compensation to be provided for past unlawful conduct.

Turning such a court order into something of practical use may require further action by you or others;

  • Action at a political level to create pressure for the judgement to be acted upon (i.e. campaigning for the law to be changed do the country no longer breaches its obligations).
  • Further legal action to specify what actions have to be taken, or to assess whether the actions that have been taken are enough

Although the court order may not clearly prohibit certain actions, it may have this effect in practice (i.e. an injunction may be implied);

  • E.g. A declaration that X company does not have the right to cut trees over a certain size and age without a permit, is effectively an order for it to stop cutting trees without a permit.
  • E.g. A declaration a law is discriminatory (often breaching the constitution) is effectively an order for the law to be changed.

If you think a declaratory judgement contains such an order within it, and the party is not following it, it could be worth bringing this to their attention, or even going back to court to show this is the case.

5

General Tips on Enforcement

a) Publicise your Victory

Publicity given to a court order may be important in at least two ways;

  • It may put pressure on a person or “shame” them into following a judgement.
  • It may deter people from breaching the order even if legal enforcement is problematic.

Example
Court orders against Shell for its pollution of the Niger Delta have often not been effectively enforced.
But the publicity generated by a range of cases in different countries against Shell put pressure for them to stop their exploitative practices and on the Nigerian government to increase regulations, eventually resulting in Shell ceasing its operations in the Niger Delta.

b) Look for Support

You may be able to get other individuals or organisations to help ensure a court judgement is followed.

Support could involve;

  • Assistance in bringing further legal action to ensure the judgement is followed.
  • Assistance in bringing a campaign, creating informal pressure for the judgment to be followed.

Such allies might include;

  • The police or authorities, to prosecute and investigate.
  • Regulatory bodies or government departments.
  • Civil society organisations who may provide wider publicity or help a campaign.
  • The media (including social media).
  • Other people who will benefit from compliance with the order – groups or communities affected by the same issue, even if not party to the court action.

For more information, see “Where Can I Get Support?”

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