Debt collection: making a statutory demand

For a company or individual that is owed more than £750 a statutory demand can be a useful tool to put pressure on the debtor.

A statutory demand has to be made on the correct form and then served on the debtor. If the creditor wishes to rely on the statutory demand in a subsequent bankruptcy or winding up petition then the creditor will require proof that the statutory demand was served on the debtor.

Once served with a statutory demand the debtor has 18 days to either (a) settle the debt, or (b) reach an agreement with the creditor or (c) in the case of individuals apply to the court to dismiss the statutory demand (the rules are different for companies).

If the debtor still has not paid by 21 days then the creditor can apply to the court for a petition to wind up (in the case of a company) or make bankrupt (in the case of individual).

When is not appropriate to serve a statutory demand?

I acted for a homeowner recently in connection with a building dispute. The facts briefly are that my client had engaged a builder to carry out building works on his property. The builder then subcontracted some of the work to another building company. As you would expect my client paid the contract price to the main building contractor. Unfortunately, the main building contractor did not pay his subcontractor who was left out of pocket. Thinking that my client was a better prospect of getting paid that the main contractor the subcontractor demanded payment from my client. As you would expect, we pointed out to the subcontractor that he had no contractual relationship with my client and that his claim was against the main building contractor. Not satisfied with this the subcontractor served a statutory demand on my client. That proved very costly for the subcontractor as we applied to the court to have the statutory demand dismissed and the subcontractor ended up paying my client’s costs. The moral of the story there is that it is not appropriate to serve a statutory demand in circumstances where the debt is disputed.

Liam Hastings  specialises in debt collection and litigation. For further advice or assistance please telephone 01245 835 305.

Disclaimer: this blog only gives a brief overview of the law and is not intended as a substitute for legal advice.

What is civil litigation?

Civil litigation is the process of resolving disputes through the civil courts.

Historically, your typical high street firm of solicitors had a criminal law department for clients in trouble with the law, a family department dealing with divorces and children issues and a civil litigation department dealing with other types of dispute.

What types of dispute are we talking about? It could involve private individuals or businesses and the subject could be about anything. We regularly deal with the following types of dispute:

  • businesses or private individuals which are owed money
  • personal injury claims
  • contractual disputes
  • probate disputes
  • disputes between landlords and tenants
  • disputes about land including rights of way and boundaries

The common theme for all of the above is that claims are usually brought in the County Court or High Court and are governed by the Civil Procedure Rules. The practice of civil litigation is reserved to solicitors so that only solicitors can undertake civil litigation on behalf of other people. In theory, you do not need to instruct a solicitor in order to bring or defend a claim in the civil courts as it is possible to act as a litigant in person. However, the court rules can be complicated and litigation is not for the faint hearted. Furthermore, if you get it wrong litigation can be very expensive and so unless you know what you are doing it is wise to get advice from a specialist.

Hastings & Co Solicitors are a niche solicitors practice in Chelmsford, Essex specialising in debt collection, employment law and civil litigation. For further advice or assistance please contact Liam Hastings on 01245 835 305.

Credit control – assessing the risk

Whenever we are asked by one of our clients to sue either an individual or a business we assess whether that person or business is worth suing. As they say, “there’s no point suing a man of straw”. At the end of the day, the client decides whether to proceed or not with litigation, however, we make sure that the client understands the risks involved.

The assessment which we undertake is the type of assessment which individuals and businesses should undertake when deciding whether to give their customers credit and how much credit to give.

We ask the following questions:-

1. Who exactly are we dealing with? ie are we dealing with an individual or a limited company.

2. Do they own any assets?

3. How long have they been trading?

The following online resources are either free or relatively cheap:-

  • In the case of individuals we check the Individual Insolvency Register to see whether the person has been made bankrupt or some other form of insolvency.
  • In the case of companies we check Companies House as this will tell us the address of their registered office, how long they have traded and whether they have been filing accounts.
  • The Land Register can be checked to find out who owns a particular piece of land.
  • Nethouse Prices will give you an idea how much properties have been selling for in the same area.
  • For a small charge you can find out whether the individual or company already has any County Court Judgments registered against them.

The more you know about your customer the more informed your decision will be.

Hastings & Co Solicitors are a niche solicitors firm in Chelmsford, Essex that specialise in debt collection and litigation. For advice or assistance please call Liam Hastings on 01245 835 305.

The Inheritance (Provision for Family and Dependants) Act 1975

Liam Hastings of Hastings & Co Solicitors takes a  look at the Inheritance (Provision for Family and Dependants) Act 1975 (often referred to as “The Inheritance Act”).

Background

The Inheritance (Provision for Family and Dependants) Act 1975 makes it possible for certain classes of people to make claims on estates. They are commonly referred to as Inheritance Act claims.

Who can claim?

The following classes of people are eligible to claim under the Inheritance (Provision for Family and Dependants) Act 1975:-

  • the spouse/civil partner of the deceased;
  • the former spouse/civil partner of the deceased who has not remarried or entered into a further civil partnership;
  • anyone living with the deceased for at least two years prior to their death;
  • a child of the deceased (which could include an adult child);
  • anyone treated as the deceased’s ‘child’ (for example, but not necessarily, adopted, fostered or a step-child); or
  • anyone being “maintained” by the deceased.

How are claims decided?

The court takes into consideration a number of factors when dealing with Inheritance Act claims including the needs and resources of all the relevant parties and the size and nature of the estate.

Are there any time limits for making a claim?

Claims must usually be made within 6 months from the grant of probate or letters of administration. It is therefore advisable to seek advice as soon as possible.

Hastings & Co Solicitors are based in Chelmsford and Maldon and specialise in litigation including claims under the Inheritance (Provision for Family and Dependants) Act 1975, contentious probate disputes and disputes about wills. Please telephone Liam Hastings on 01245 835 305 for further advice or assistance.

Disclaimer: this blog is intended to give a brief overview of the law and does not substitute for independent legal advice.

Law of intestacy – what happens if I die without a Will?

What happens if I die without a Will?

Liam Hastings of Hastings & Co Solicitors based in Chelmsford, Essex looks at the Law of Intestacy and how this applies to people who die without a will.

When a person dies and they have not made a will, it is said they have died ‘intestate’ and their estate is divided according to ‘the law of intestacy’. In effect the law decides what happens to the deceased person’s estate. This can have some surprising results.

The Law of Intestacy

Let’s look at how the Law of Intestacy applies in different situations.

A married couple or civil partners with surviving children, grandchildren or great children

If the estate held in the deceased’s sole name (or jointly as tenants in common with another) is valued at more than £250,000 the surviving spouse or civil partner will inherit:-

  • All personal effects and belongings of the person who has died; and
  • The first £250,000 of the estate; and
  • A life interest in half of the remaining estate (with the other half being distributed amongst children, grandchildren or great grandchildren as the case may be).

It may surprise some people to learn that their spouse or civil partner may not automatically inherit everything if they die without a will.

A married person or civil partners without surviving children, grandchildren or great grandchildren

If there are surviving parents, or brothers, or sisters, or nieces, or nephews, the surviving spouse or civil partner will inherit:

  • All personal property and belongings of the person who has died; and
  • The first £450,000 of the estate held in the deceased’s sole name (or jointly as tenants in common with another); and
  • One half of the remaining estate (with the other half being distributed amongst other relatives as the case may be).

Once again, it may be a surprise to learn that their spouse or civil partner does not automatically inherit everything.

If the married couple or civil partners die together, say in an accident, the law deems that the oldest person died first. It follows therefore that the estate of the eldest person will pass to the estate of the youngest person (subject to the rules as stated above). The estate of the youngest person will then be distributed according to the rules of intestacy. This could lead to everything passing to the younger person’s family with the older person’s family missing out.

Unmarried couples

The Intestacy Rules make no provision for unmarried couples, no matter how long they have been in a relationship. Therefore, solely held assets (or those held jointly as tenants in common) will not pass to their partner but will pass to the nearest blood relative(s).

If someone has died without a will can anything be done after the death to change how the estate is distributed?

It is possible for the beneficiaries to agree to vary the will, or intestacy rules, however this does require all the beneficiaries to agree to the variation. Or there may be a claim under the Inheritance (Provisions for Family and Dependents) Act 1976. However, these solutions are more expensive than making wills and will involve other people that may wish to dispute the proposed changes.

Conclusions

The Laws of Intestacy will not suit everyone and in some cases will result in unintended consequences. These consequences can be easily avoided by making wills.

Hastings & Co Solicitors specialise in litigation including contentious probate disputes and disputes about wills. Please telephone Liam Hastings on 01245 835 305 for further advice or assistance.

Disclaimer: we have not attempted to explain all the rules or all situations. This blog is intended to give a brief overview of the law and does not substitute for independent legal advice.

Enforcing County Court Judgments

So you’ve got a County Court Judgment against someone and they still do not pay, what should you do next? This blog looks at the various methods of enforcing County Court Judgments.

A County Court Judgment (or “CCJ”) is just a piece of paper saying that someone (or it could be a company) owes you money. This blog looks at the main methods of enforcement.

(1)          COUNTY COURT BAILIFFS

You could apply to the County Court for a Warrant of Execution. The Warrant of Execution gives the County Court bailiff authority to take goods from the debtor. The Court bailiff will try to either  collect the money you are owed or take goods to sell at auction.

Pro’s:                          The application is simple enough.

Con’s:                         Bailiffs cannot enter into a residential house unless invited to do so by the debtor. This is a serious limitation to their effectiveness against private individuals and also businesses working out of a private residential address.

Process:                     You apply to the County Court for a Writ of Execution on form N323.

Court fees:                 £100 to be paid when the application for a Warrant is made.

(2)          HIGH COURT ENFORCEMENT OFFICERS

If the debt is over £600 you could apply to have the debt transferred to the High Court for enforcement and then instruct High Court Enforcement Officers to collect the debt.

Pro’s:                          Most solicitors are of the opinion that High Court Enforcement Officers are more effective than County Court bailiffs at collecting debts.

Con’s:                         The application is slightly more complicated than instructing the County Court bailiff because the debt has to be transferred up to the High Court first.

High Court Enforcement Officers have the same problems when enforcing against private individuals as County Court bailiffs.

Process:                     You apply to the County Court for a combined certificate of judgment and to enforce the judgment by a Writ of Fi Fa on form N293a.

Court fees:                 £60 to transfer the debt up. Then there are the High Court Enforcement Officer’s fees on top. If the HCEO is unsuccessful in collecting the debt these will be limited to £60 plus VAT. If the HCEO is successful then they recover their fees from the debtor.

(3)          ATTACHMENT OF EARNINGS 

If the debtor is employed you can apply for an attachment against earnings. The Court will write to the debtor and ask them to provide details of their income and outgoings. The Court will then decide how much money should be deducted from their income each month. 

Pro’s:                          The application is simple enough.

Con’s:                         There are a number of limitations including (a) the amount which the debtor is ordered to pay can be pitifully low, (b) if the debtor moves jobs or stops paying further applications (and further court fees will be payable) and (c) it doesn’t work against self-employed people.

Process:                     You apply to the County Court for an attachment of earnings order on form N337.

Court fees:                 £100 to be paid when the application is made.

(4)       THIRD PARTY DEBT ORDER

If you know the debtor’s bank account details you can apply for a third party debt order whereby the bank or building society will be ordered to pay money to you.

Pro’s:                          The application is simple enough. 

Con’s:                         If there is nothing in the account when the application is made then the application will fail.

Process:                     You apply to the County Court for a third party debt order on form N349.

Court fees:                 £100 to be paid when the application is made.

(5)       A CHARGING ORDER OVER LAND

If the debtor owns land you can apply for a charging order over that land.

Pro’s:                          If the debtor owns land this is an excellent way to secure the debt. 

Con’s:                         The application is slightly complicated for novices and does require attendance at a court hearing. Further it only secures the debt and does not guarantee payment without further action being taken, usually an application for an order for sale of the property.

Process:                     You apply charge on form N379.

Court fees:                 £100 to be paid when the application is made.

(6)       ORDER TO OBTAIN INFORMATION

This is not a method of enforcement as such but is a way of finding out more information about the debtor and whether they will be able to pay.

Pro’s:                          It’s a starting point if you have limited information about the debtor and their assets and liabilities. 

Con’s:                         The application is slightly complicated for novices. Further, the order must be personally served on the debtor. If you are not willing to personally the order then you will need instruct a process server or the court bailiff can be instructed however a fee of £100 is payable.

Process:                     You apply for an order on form N316.

Court fees:                 £50 to be paid when the application is made. If you require the court bailiff to serve the order on the debtor there is a further fee of £100 payable.

(7)       BANKRUPTCY OR WINDING UP PETITION

In the case of a private individual you could apply to make that person bankrupt, or in the case of a company you could apply to wind the company up. Ironically, this method is more likely to succeed in making a recovery from a solvent person / company than an insolvent one. Solvent people/companies will often try and raise the money to prevent the bankruptcy / winding up going through. 

Pro’s:                          It’s a starting point if you have limited information about the debtor and their assets and liabilities. 

Con’s:                         The application is complicated for novices. Further, it is quite expensive compared to the other methods of enforcement.

Process:                     The application is complicated and beyond the scope of this blog.

Court fees:                 There are various fees payable including a deposit payable to the official receiver, court fees, process server’s fees for serving documents on the debtor. These fees only will exceed £1,000.

Hastings & Co Solicitors are solicitors based in Chelmsford, Essex specialising in litigation and experienced in all methods of enforcing County Court Judgments. Telephone 01245 835 305 for advice.

Disclaimers:

(i)            Court fees correct at time of publishing. The Court publishes up to date information about fees on form EX050.

(ii)          This advice sheet is only intended to give a brief overview of the different methods of enforcement and is not a substitute for legal advice.

Businesses that sell to consumers need to BEWARE of the Cancellation of Contracts Made in a Consumer’s Home or Place of Work Etc Regulations 2008

A swift moveThe regulations apply to businesses that enter into contracts with consumers in their home or place of work. They apply even if the customer invited the business to come round.

The regulations require businesses to give the consumer a notice, in a prescribed form, informing the consumer that they have a right to cancel the contract within 7 days.

I suspect that the regulations were aimed at businesses which use aggressive sales tactics. Perhaps in the past some window companies or timeshare companies were guilty of this. However, the regulations affect all businesses including many reputable businesses. Builders and tradesmen are particularly vulnerable because they will almost certainly visit the customer at their home in order to quote. However, other businesses are potentially affected including solicitors.

The case of Robertson –v- Swift earlier this year went up to the Court of Appeal. In that case, Mr Swift was a removal man and Dr Robertson invited him round to his house to give a quote for his services. Mr Swift quoted £7,600 which Dr Robertson duly accepted and he paid a deposit of £1,000.

Dr Robertson found someone else cheaper and wanted out of the contract. Mr Swift wanted to exercise a cancellation clause which entitled him to be paid 50% of the quoted fee. Dr Robertson wanted his deposit back. They ended up in the Court of Appeal.

The Court of Appeal was sympathetic to Mr Swift who was a reputable businessman. However, the Court of Appeal held that as Mr Swift had not complied with the regulations the contract was not enforceable and Mr Swift was not entitled to his cancellation fee. They did allow Mr Swift to keep the deposit.

I’ve been personally involved in two disputes concerning these regulations. The first one involved a tradesman who had carried out a substantial amount of work at a residential property and the customer was refusing to pay. I acted for the tradesman. The second one concerned a dispute between a builder and his customer who was refusing to pay for building works. This time I acted for the customer.

In both cases, there was a dispute about whether the regulations applied the issue being whether the contract was concluded in the customer’s home or not. In both cases, the builder/tradesman was owed several thousand pounds. However, by not complying with the regulations the builder/tradesman  gave the customer a massive stick to beat them with.

The moral of the story is that businesses which go out to customers at their home or place of work must comply with the regulations by giving the customer the relevant cooling off notice.

Hastings & Co are based in Chelmsford, Essex and specialise in litigation and advise builders, tradesmen and consumers in connection with building disputes. For advice or assistance contact Liam  Hastings on 01245 835 305.

Useful links:

The regulations can be found here: http://www.legislation.gov.uk/uksi/2008/1816/contents/made

How to prepare a notice:

Schedule 4 of the regulations lets you know what information must be in the cooling off notice: http://www.legislation.gov.uk/uksi/2008/1816/schedule/4/made

Disclaimer: this is only intended as a brief overview of the law and not intended as a substitute for proper legal advice.

Here’s a template notice that you could attach to your quote/contract. The trader needs to insert the correct information in the square boxes.

Notice of the right to cancel

[insert the name of your business including trading name if any] hereby gives you notice that you have a right to cancel the contract if you wish and that this right can be excercised by delivering, or sending (including by electronic email) a cancellation notice to the person mentioned in the next paragraph at any time within the period of 7 days starting with the day of receipt of a notice in writing of the right to cancel the contract.

The cancellation notice should be sent to [insert name of person] at [insert address] or by electronic email to [insert email address].

This notice concerns the following contract: [insert your reference number, code or other details to enable the consumer to identify the correct contract or offer]

The notice of cancellation is deemed to be served as soon as it is posted or sent to us or in the case of an electronic communication on the day it is sent to us.

You may use the following cancellation form if you wish:

Cancellation Notice

If you wish to cancel the contract you MUST DO SO IN WRITING and deliver personally or send (which may be by electronic mail) this to the person named below. You may use this form if you want to but you do not have to.

Complete, detach and return this form ONLY IF YOU WISH TO CANCEL THE CONTRACT.

To: [trader to insert name and address of person to whom notice may be given]

I/We (delete as appropriate) hereby give notice that I/We (delete as appropriate) wish to cancel my/our (delete as appropriate) contract [trader to insert reference number code or other details to enable the contract or offer to be identified. He may also insert the name and address of the consumer.]

Signed……………………………………………

Name and address

……………………………………………………………………………………

……………………………………………………………………………………

Date………………………………………………