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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.
There are many different types of court orders. The most common are;
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;
Sometimes, more action or another court order is needed for the original order to be enforceable.
Some orders are broad, others are precise.
The more precise and detailed the order, the easier it is to know if the order is being obeyed or breached.
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”).
For more information on types of court orders, see “What Remedies Are Available?”
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:
In some countries, there are “bailiffs” whose job it is to officially notify the relevant parties of court orders.
Sometimes, enforcement requires action by someone other than your opponent in court. Make sure every party who needs to take action is notified;
b) Challenges to Enforcement
Sometimes, people against whom orders are made deliberately try to avoid carrying out the order by;
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;
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.
Enforcing an order for compensation will be easier if the order;
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.
b) Enforcing Payment
Some legal systems have specific mechanisms to enforce payment.
The claimant or a public authority may be able to;
For companies who operate and have assets in different countries, enforcing a judgement may require creative thinking, involving actions in different courts.
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;
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 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.
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;
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;
Although the court order may not clearly prohibit certain actions, it may have this effect in practice (i.e. an injunction may be implied);
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.
a) Publicise your Victory
Publicity given to a court order may be important in at least two ways;
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;
Such allies might include;
For more information, see “Where Can I Get Support?”