How can I enforce a court order?

If you feel a court order is not being complied with, the first question to ask is whether or not the order is enforceable. Sometimes an order needs further action or may even require another court order to be enforceable.

For example, if a court has decided that you are entitled to compensation, this by itself is unenforceable and of no practical use. You will need to get the court, or another responsible body, to assess exactly how much compensation is due before you can demand enforcement.

Some orders are fairly general, others quite precise. The more precise and detailed the order, the easier it is generally for the person against whom it is made to know what they must or must not do. It is also easier to determine whether the order is being complied with or if it has been breached. Compare

a) “Members of the X tribe should be permitted reasonable access to ancestral lands for religious purposes”

and

b) “The members of the X tribe 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”

If you have obtained a court order which is enforceable and if there is a clear breach of the court order, the breaching party may be committing a criminal offence or may be in “contempt of court”. This may lead to police action, prosecution, fines, or imprisonment. However, you will need to find out what the correct procedure is to get the responsible authority to act.

Enforcing a court order depends on the type of order in question. The three main types of court order are:

• An order to do or not to do something
• An order to pay money. Somebody must pay money to someone else
• A declaration or clarification of the legal rights or obligations of someone. For example, the court may declare a contract void.

We will look at enforcement procedures for each of these types of order in turn.

If you have obtained an order of this kind, the first step is to make sure that the order is notified to everyone who may need to take action. Sometimes, enforcement requires administrative action by someone other than your opponent in court. To enforce an order against one government office or ministry, you may need to contact another ministry or office. Similarly, to enforce an order against the “Head Office” of a company, you may have to contact the company’s operations department or their contractors or security personnel.

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 or might be involved in enforcing it.

In some legal systems there are bailiffs whose job it is to officially notify decisions of a court. If you can have the court order delivered by a bailiff, it becomes impossible for the recipient to deny knowledge of the order.

Some people against whom orders are made deliberately create confusion by referring complainants to the wrong department within the company or ministry or by claiming ignorance of an order.

Make sure that the senior management or top personnel are contacted in writing (by letter or email or fax). You may need to research the names of senior management as people often conceal or withhold the identities or contact details of key personnel. 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.

The court may order that somebody pays money to an injured party. Your task of enforcing it will be easier if the order is clear as to how much is to be paid, by when, and whether interest may also be payable. It should also state how much the party concerned must pay at a particular time. If this is not the case, you may need further clarification from the court.

Mechanisms for getting money

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 compel someone else to pay on their behalf.  For example, that “someone else” could be an associated company of the company concerned, or a relative of the person concerned, or someone who owes them money.

Some legal systems have specific mechanisms to enforce payment. For example, the claimant or a public authority may be able to

• Attach or freeze money or property belonging to the paying party or money owed to that party by someone else
• 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.

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

Some parties take steps to hide assets. Tracing assets abroad, or in hidden accounts, or in accounts in other people’s names, may be possible but is highly technical, often expensive and time consuming, and will require professional assistance.

Similarly, it may be possible in some cases to enforce an order against associated companies, shareholders, directors, or insurers of the party concerned. Again 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.

Sometimes an order may declare that certain conduct is lawful or unlawful, or that certain people have specific rights or obligations. For example: “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” or “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”.

Turning such a court order into something of practical use may require further action or pressure at  a political or administrative level to ensure that the necessary procedures or framework are in place.

So, for example, a declaration that a party has a right to free schooling or equal pay or clean water will not of itself provide the school or pay for water. A declaration that conduct is unlawful or discriminatory will not in itself make it stop or provide compensation for any past unlawful conduct. Sometimes an order will require further laws to be made, for example, to make a state compliant with its obligations.

The decision may require or authorise further action by the claimant or by others.

The order may in practice prohibit certain actions even if it contains no specific prohibition, for example, a declaration that X company is not entitled to fell trees over a certain size and age without a permit.

Here are some general tips on how to enforce a court order.

Publicise your victory

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

• It may provide pressure on a person to comply or “shame” them into complying
• It may deter people from breaching the order even if legal enforcement is problematic

Enlist support

You may be able to persuade other individuals or organisations to help ensure compliance, either by formal process or by informal pressure. Such allies might include

• The police or authorities, to prosecute or investigate
• Regulatory bodies or government offices and departments
• Civil society organisations who may provide wider publicity or help a campaign
• The 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