Once you have got a court order you may need to take steps to ensure it is carried out.
Court orders are formal decisions of a court. You can often identify a court order because it has a court’s seal upon it.
One way to categorise court orders is because of when the court makes them in the course of your claim:
When it comes to final orders, the most common are:
The important point is that all court orders are binding. They must be complied with by the parties in a case. If one party is refusing to comply or is ignoring an order, action can be taken to enforce the order. However, 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?
As legally binding orders, all court orders can be enforced. However, sometimes, the person that wants to enforce an order has to do something in addition to winning a case for the original decision to be enforceable.
If you win a case or a court decides in your favour on an interim application, the court is usually responsible for “drawing up” the court order. This means that the court will write the order.
However, sometimes the winning side has to draw up the court order and share it with the court for approval. Check if you need to do this.
For a court order to be enforceable, it sometimes needs to be served (i.e. shared) with the person or company that needs to comply with the order.
Usually the court is responsible for serving a court order on the other side but sometimes the winning side has to do this. To serve a court order, you generally can send it to the home or business address of the other side.
For a court order to be enforced, it has to be clear enough so that the party it’s enforced against knows what they have to do to comply with the order.
If a court decision is broad and unclear, you may have to request that the court clarifies its decision or makes a specific order that shows how it must be complied with.
Sometimes, enforcement will be simple. This is generally the case where the court is responsible for drawing up, serving and enforcing the court order. In some countries, the court takes a very active role in enforcing its decisions.
However, enforcing a court order can be challenging where you are responsible for its enforcement or the people against whom orders are made deliberately try to avoid carrying out the order by:
Example: The Shell Gas Flare Cases in Nigeria
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.If you are having troubling enforcing a court order, try following these tips.
As mentioned, court orders often have to be served on the other side. If the court is responsible for doing this, there should not be an issue here. In some countries, there are “bailiffs” whose job it is to officially notify the relevant parties of court orders.
If you are responsible for notifying the other side, it is important to make sure that everyone who needs to take action is aware of the court order.
You should communicate the terms of the order to:
Sometimes, enforcement requires action by someone other than your opponent in court. Make sure every party who needs to take action is notified:
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.
Make sure you notify the other side at the correct address. This will usually appear in the court documents. For example, check the formal defence document of the defendant. This will usually have an address at the top of the front page of the end of the document.
If it is unclear what the best address is, it is wise to serve additional copies of the court order at multiple addresses that relate to the defendant. For example:
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.
The more precise and detailed the order, the easier it is to know if the order is being obeyed or breached. For example:
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.
Practical Tip: Make it Clear What Court Order You Want
In your written and oral arguments to the court, make specific proposals about how the alleged unlawful act should be remedied. State exactly when you want the court to require the other side to do.
This is especially important if you have to draw up the court order.
Publicity given to a court order may be important in many ways:
Example: Shell in the Niger Delta
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.
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.
If you think that an enforceable court order is not being complied with, it may be wise to take steps to start contempt of court proceedings:
Even the threat of contempt of court proceedings can put pressure on a defendant to comply with a court order.
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:
If a court decides you are entitled to compensation but does not specify how much compensation you have to be paid, this is unenforceable and you will need to get the court to assess how much compensation you are entitled to at a separate hearing before you can demand enforcement.
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. Try to ensure that these are specified in the original court order. Request this from the court.
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.
You should try to assess the financial position of a defendant before you take legal action if your main objective is to get compensation.
Even if the party concerned has the money, they may not pay or try to avoid paying;
Example: The Texaco/Chevron Ecuador Case
In the Ecuador case, Texaco/Chevron have used US courts and international arbitration to get legal approval for refusing to pay the courts’ judgement.
Some legal systems have specific mechanisms to enforce payment. Courts in some countries can make special supplementary orders to ensure that a defendant pays compensation within the agreed time. In most cases, these orders have to be applied for by the party that wants the order enforced.
Look out for some of the following possibilities:
This orders freezes money or property belonging to the paying party or money owed to that party by someone else (this means the party can’t move or use the money or property).
These are orders for the paying party’s property to be taken and sold. The party that’s owed money then gets the money from the sale of the property. Law enforcement or bailiffs are usually responsible for this process.
Debt orders mean that anyone who owes the defendant money has to pay you instead of the defendant.
Charging orders mean that you get an interest on the defendant’s property (like a mortgage) until they pay you what you are owed.
Attachment of earnings orders mean that the defendant’s employer has to pay you money out of the defendant’s salary.
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. You could then get paid out of these assets.
For companies who operate and have assets in different countries, enforcing a judgement may require creative thinking, involving actions in different courts.
Example: Texaco/Chevron Case in Ecuador
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.
If it is difficult to enforce a payment order against a particular party, it may also 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. Seek legal advice in your country.
Sometimes an order may declare that certain conduct is lawful or unlawful, or that certain people have specific rights or obligations, but does 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 a declaratory judgment into a court order of practical use may require further action by you or others.
This could involve 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).
In other cases, the winning side may have to request that the court clarifies a declaratory judgment and makes a supplementary order if they feel that the other side is not complying with the judgment and disagrees with what it means.
Although the court order may not clearly prohibit certain actions, it may have this effect in practice (i.e. a specific 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.
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