A GUIDE TO COMMERCIAL DEBT RECOVERY

Sutton & Co. Solicitors will attempt to recover monies owing to you, these sums can be outstanding for up to 6 years and there is no minimum or maximum limit for a debt. In the event that monies are owed to you and you do not know the whereabouts of the debtor, we can instruct our trace agent, who will on a no trace, no fee basis try to trace the debtor. 

There are two routes that can be taken, the County Court route and/or the Insolvency route. 

COUNTY COURT 

The general process comprises of three key stages as follows: 

1. Letter before action 

A GUIDE TO COMMERCIAL DEBT RECOVERY
A GUIDE TO COMMERCIAL DEBT RECOVERY

Subject to your instructions, we will send a letter before action to the debtor demanding payment within 7 days. The content of the letter is bespoke to your requirements and states that payment or response needs to be sent direct to you. Should there be no payment/response within the stipulated deadline, we will seek your instructions as to whether to commence Court proceedings. Please note that for an individual/sole trader debtor, it may be necessary for us to send a 30 day pre-action protocol letter. 

2. Issue a claim form (commencement of Court proceedings) 

Should you wish to commence Court proceedings, we will send a claim form to the Court. The Claim Form will then be issued and sent to the debtor by the Court. On receipt of the claim form (date of deemed service), the debtor will have 14 days (unless an acknowledgment is filed, in which case it will be 28 days) to respond. The debtor can do one of four things: 

  • Do nothing – in which case you would be entitled to obtain a County Court Judgment in default against the debtor. 
  • Admit the debt – in which case you would be entitled to obtain a County Court Judgment against the debtor based on their admission. 
  • Pay the full amount claimed. 
  • Defend the debt. In which case, the Court would order directions for the parties to comply with and set the matter down for a final hearing. If the debt is defended then we will deal with the matter as a disputed claim. 

3. Enforcement 

If a County Court Judgment is obtained against the debtor and they default upon payment, you would then be entitled to take steps to enforce the County Court Judgment. There are various methods of enforcement, which are dependent upon what information you have about the debtor and whether the debtor is a company or an individual. The main methods are as follows: 

  • County Court Bailiff or High Court Enforcement Officer – an attendance will be made at the debtor’s address to attempt to recover payment and/or proposals for repayment of the judgment debt. If the debtor fails to make payment the debtor’s goods can be removed and sold at auction.
  • Charging Order over the debtor’s property – the benefit of placing a charge on the debtor’s property is that payment of the entire judgment debt is secured against the property. However, payment will only be made when there is a sale/re-mortgage of the property. Payment of the judgment debt is of course on the basis that there is sufficient equity in the property. 
  • Attachment of Earnings Order – this is a method by which money will be deducted from an individual debtor’s wages to pay the judgment debt and can only be used if the debtor is in paid employment. If you do not have the debtor’s employment details, we can ask our enquiry agent to perform an employment status report. 
  • Third Party Debt Order – this method is an order of the Court that freezes money held by a person or organisation or institution, such as a bank or building society, which might otherwise by paid to the debtor. The organisation or person that is holding the money is referred to as “the third party”. A third party debt order will prevent the debtor having access to the money until the Court makes a decision about whether or not the money should be paid to you. 
  • Order to obtain information from Judgment Debtor – this is not a form of enforcement itself. It is a way of obtaining information from the debtor, on oath, before an Officer of the Court, which will help you decide whether it is worthwhile taking an enforcement step and if so, which of the methods available is most likely to result in payment of the debt. If the debtor does not comply with this procedure, they can eventually be imprisoned. 

INSOLVENCY 

The insolvency route is used for debts that are over £750 for Limited Companies and £5,000 for individuals and that are undisputed. The procedure varies depending upon whether the debtor is a Company or an individual. 

Limited Company 

The first stage is to send a demand (either a section 123 demand or a statutory demand) to the debtor company’s registered address, demanding payment within 3 or 21 days (the timeframe for payment is governed by the type of demand). In the event that payment is not received and you wish to wind up the debtor company, we will issue a winding up petition at Court for you. 

Individual 

The first stage is to send a statutory demand to the individual debtor, demanding payment within 21 days. In the event that payment is not received and you wish to bankrupt the individual debtor, we will issue a bankruptcy petition at Court for you. 

For further assistance, please contact Mrs Kax Chana on 0121 448 3107 or 0795 106 4120, email kax.chana@suttonsolicitors.com 

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