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:
- 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: 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.
(a) Make Sure You Have Notified the Right Person
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 the court order is delivered by a bailiff, the recipient can’t deny knowledge of the order.
- If possible in your legal system, request from the court that they be responsible for serving an order on the other side.
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.
(i) Identify the Right People
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.
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.
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.
(ii) Identify the Correct Address
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:
- The address where a defendant company is headquartered in your country, as well as its major places of business
- If the court order is against an individual, serve the document at their home address, any second address they have, their workplace and share it with them personally if possible.
(iii) Notify the Other Side in Writing
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.
(b) Make the Court Order as Precise as Possible
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”. Compare this 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.
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.
(c) Publicise Your Victory
Publicity given to a court order may be important in many ways:
- If the court order has been made public, it is harder for the defendant to claim ignorance.
- 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: 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.
(d) Contempt of Court Proceedings
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:
- You will need to find out what the correct procedure is to get the responsible authority to act.
- However, as this is a criminal offence, it will often be possible to report suspected contempt of court to the police to investigate and prosecute the defendant.
Even the threat of contempt of court proceedings can put pressure on a defendant to comply with a court order.
(e) 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?
