In order to secure the recovery of a claim, or to secure evidence, a lawyer can have an attachment order made. At Blenheim, attachment orders fall within the work of the procedural law team, specialists in litigation.
Application for an attachment order
A request for an attachment order prior to proceedings must be submitted by a lawyer to the court. Registrar’s fees are required to process the application for an attachment order. The application for an attachment order must state the facts of the case, including:
- the basis of the claim (e.g. breach of contract or tort);
- a brief description of the goods or services supplied;
- an indication of the defences and grounds that the opposing party has put forward;
- the submission of sufficient documentation, e.g. an overview of invoices with invoice numbers, dates and amounts, a contract, reminders and notice of default;
- the application for an attachment order must state the reasons why the attachment order is necessary and why the choice has been made to attach the goods mentioned in the attachment notice, as well as why a less onerous attachment order is not possible (e.g. attachment of immovable property instead of bank account garnishment).
Different types of attachments
There are various forms of attachment, which a lawyer will advise you on. For example, money can be seized at the bank where the debtor has his or her account; this is called garnishment. This garnishment can also be imposed on a party that owes money to the debtor. A garnishment of wages can be imposed on an employee under an employer. Attachments may also be made directly against the debtor themselves, such as on inventory, vehicles, company shares, evidence (a computer), etc.
Summons after attachment order
If a pre-judgment writ of attachment is made, and proceedings are not yet pending, the lawyer has to draw up the writ of summons. By default, the summons must be served on the other party within two weeks of the attachment order. The lawyer may also request a longer period within which the summons must be served.
Suspension of attachment
There are four ways to have the attachment suspended.
- You can provide security (bank guarantee) for the amount for which the attachment has been imposed for;
- You can wait for the court’s assessment in the proceedings as to whether the claim is lawful;
- You can demand the removal of the attachment in summary proceedings (urgent procedure);
- If there is already a procedure pending concerning the dispute between you and the person effecting the attachment, in this procedure you may ask the court to lift the pre-judgment writ of attachment.