Employment tribunal awards via HCEO
Not many people realise that employment tribunal awards and
Last May, Jack Straw announced an important new initiative by which employees with awards and settlements can have them transferred up to the High Court for enforcement.
Further good news is that a new simpler process in transferring an award is due to go live on
The standard rules relating to transfer up apply – the award must be up to six years old and be for £600 or more (if the award is for a slightly lower amount, it may still qualify once fees, costs and interest payments have been added). This provides plenty of scope for those with outstanding awards to still enforce and be paid what they are due, plus interest.
Jack Straw’s decision was influenced by research conducted by
The research found the cases where awards were less likely to have been paid were when the award was for a high value, for those in managerial roles, those from small businesses and cases where the employee had worked for less than two years. A significant number (18%) did not even know they could start enforcement proceedings and for those that did, concerns that it would cost too much put many off. You can read the full research paper here.
David Carter
Director, The Sheriffs Office
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of
When to use debt collection and what to do if it fails?
When a company has exhausted their own procedures for collecting unpaid debts, they may turn to a debt collection agency to take things forward to the next step. Many debt collection agencies are successful, but they don’t succeed every time.
A debt collection agency will primarily write letters, make phone calls and follow a process that is office based to recover debt. They may visit the debtor, but the Office of Fair Trading guidance states that they must give adequate notice. For example, if the debt collector arrives unannounced, they may not pressurise the debtor into the discussing the debt there and then. If the debtor wishes to arrange for them to return at a later time, the OFT says this must be agreed to (agencies should be licensed by the Office of Fair Trading). Debt collectors have no powers of entry or seizure.
If the debt is either a fairly small amount or the creditor believes that the debtor is just delaying or trying to wriggle out of payment, but will pay if a little pressure is applied, then debt collection may be the best route.
But for those harder to recover cases, all is not lost.
You will need to take action to get a county court judgement and then have it enforced. The enforcement could be by certificated bailiffs (for commercial property and rent issues), county court bailiffs or high court enforcement officers (HCEO). I have written an article about the difference between county court bailiffs and HCEOs.
However, I would add a note of caution to not leave things for too long before you take further action if debt collection isn’t working. If someone else gets a judgment before you, theirs will take priority; if the debtor is struggling, they may be about to go out of business and have few, if any, assets to enforce against.
If it’s a large debt and you have concerns, you might want to go straight to a judgment and prompt enforcement.
In terms of fees, with debt collection, the creditor pays the debt collection agency’s fees, generally on a per letter/phone call basis and/or a percentage of the debt recovered. If the debt collector is unsuccessful in recovering the debt and it is transferred to the courts for a judgment, then reasonable and genuine costs incurred through the debt collector may normally be added to the debt for recovery (as well as interest).
David Carter
Director, The Sheriffs Office
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of
The dog ate my homework
I don’t know if you ever used this excuse at school, but it seems many finance departments are fine-tuning their excuses to delay payments.
New research by Creditsafe highlights the accounting tricks routinely being used. For example, more than one in 10 companies has been forced to reissue at least 20% of client invoices in the last 12 months and a staggering 96% of UK companies have been forced to reissue a customer invoice in the last 12 months.
Despite the fact that these delaying tactics are causing problems for creditors, especially smaller businesses, these firms are asking for replacement invoices so as to restart the timescale for payment.
Now, they’re not actually saying the dog ate their homework, but 71% are saying they never received the invoice, and 8% are querying the value of the invoice. Other reasons are that the
Then they uncovered a whole box of tricks about delaying cheque payments – failing to sign it, getting the amount or date incorrect.
But Creditsafe also uncovered some excuses that even better than the dog/homework one:
- “I’m too important to read my post, so why would I know you billed me”
- “I’m going through a divorce, please issue the invoice to my soon to be ex-wife!”
- “My husband has my cheque book and he has now been put in prison”
- “Our accounts lady is off at the moment as her cat died”.
- ”The finance director had a heart attack due to stress and can’t sign cheques in hospital.”
- “The customer couldn’t get into the office to get the cheque book because the locks had been superglued by travellers. The cheque was for £18,000.”
- “The goods were signed for in a different colour pen to the one our warehouse manager normally uses, so we have to check it was definitely him who signed for the merchandise before we pay you.”
- “My wife has gone off to look after the grandchildren for a week and taken the business cheque book with her.”
Entertaining as these excuses may be, it can be bad news for creditors. Please thoroughly check out companies before you supply them and get solid terms and conditions in pace before you start trading. If they’re a poor credit risk or habitual late payers, think carefully before you get involved.
David Carter
Director, The Sheriffs Office
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of
Protecting the vulnerable
In the course of our work at The Sheriffs Office, we often come into contact with potentially vulnerable debtors. The national standards for enforcement are quite clear in stating that enforcement agencies, their employees and creditors must ensure that the genuinely vulnerable and socially excluded are protected.
The standards insist that the enforcement agency and the creditor agree procedures for dealing with such situations. If in any doubt, the enforcement agent has a duty to contact the creditor of situations where there is cause for concern and advise the creditor what further action, if any, would be appropriate to that situation.
This is in the interest of all parties – the creditor, the enforcement agency, and, naturally, the vulnerable debtor.
Those who might be potentially vulnerable include:
- The elderly
- People with a disability
- The seriously ill
- The recently bereaved
- Single parent families
- Pregnant women
- Unemployed people
- Those who have obvious difficulty in understanding, speaking or reading English
In the case of those who struggle with English, enforcement agents should be able to quickly access translation services and provide, on request, information in large print or in Braille for debtors with impaired sight.
One other key group of vulnerable people are children. Enforcement agents must withdraw from domestic premises if the only person present is, or appears to be, under the age of 18, although they can ask when the debtor will be home. And enforcement agents must withdraw without making any enquiries if the only persons present are children who appear to be under the age of 12.
We strongly endorse these standards and work closely with our clients to ensure that, jointly, we do all we can to protect the genuinely vulnerable.
David Carter
Director, The Sheriffs Office
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of
Sheriffs Interpleader Proceedings
More commonly however is after the creditor obtained a judgment and the appropriate writ, a third party then claims ownership of the money or goods that have been or will be seized.
If the creditor disputes the third party’s claim, the Court will issue an interpleader summons for all the parties to attend Court to so that rightful ownership can be determined.
If a third party intends to make a claim, they must advise the HCEO enforcing the action, giving their name and address (the address must be the address for service).
When the HCEO receives this claim, they must give notice to their client, the original creditor, and the creditor must advise the HCEO within seven days whether they are admitting or disputing this claim. If the creditor does admit the claim, they are only liable to pay for the fees and expenses incurred by the HCEO before the notice was received.
If the creditor either disputes the claim or fails to respond within seven days, then the HCEO can apply to Court to issue an interpleader summons.
When applying for an interpleader summons, the creditor applying must provide evidence that they:
- claim no interest in the subject-matter in dispute other than for charges or costs
- do not collude with any of the claimants to that subject-matter
- are willing to pay or transfer that subject-matter into court or to dispose of it as the court may direct.
However, if the person applying is an HCEO, then they don’t need to provide this evidence unless the Court asks them to.
Sheriff’s (i.e. HCEO) interpleader proceedings may only be brought in the Queen's Bench Division.
Further information is available at the Ministry of Justice websiteunder
David Carter
Director, The Sheriffs Office
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of
Identity fraud on the rise
The CIFSA– the
But what impact does this have for enforcement?
While most of the impact will be felt by the lender and the individual who has had their identity stolen or their account taken over, there are also businesses that may extend credit to those using another’s identity.
If the person whose identity has been stolen can prove that this has happened, you are left with no one to enforce against unless the police can catch and prosecute the fraudster. Even then, the likelihood is there will be few assets to claim against.
So, while a remedy may be almost impossible, you can take preventative measures, with insolvency and bankruptcy checks, credit agency checks, and a searchto ensure that the customer is actually who they say there are.
David Carter
Director, The Sheriffs Office
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of
Tracing a debtor
In an earlier article on how to make your case enforceable, I talked about the importance of having all the correct details about your debtor so that your judgment can be enforced.
An important part of the process may be actually locating the defendant, either an individual, a sole trader or a company director.
Before you start the trace, try to gather as much information about the person as you can – name, last known address, telephone number, vehicle registration, date of birth.
Probably the most useful of these is the date of birth, as this allows a trace with a high degree of accuracy, as 90% of the records we have access to hold a precise date of birth. A vehicle registration and telephone number (personal and business numbers) also help in tracing people.
The sources of data that can be searched are quite wide-ranging. They are all Data Protection compliant of course, and include:
- Land Registry
- Birth, death and marriage records for
- BT database (updated daily)
- UK Directory Enquiry database
- Electoral Register
- DVLA - registered vehicle keeper details are only available if the case is being enforced by an HCEO
- HPI database - giving details of any financial interest, number-plate changes and insurance write off information of a vehicle
- Companies House
You can also make some preliminary checks yourself to find out whether it is worth your while to try to enforce the case. You can check whether an individual or sole trader is insolvent by checking the Insolvency Register, or find out if a company is still trading at Companies House.
A trace is a fast process with a low fee - we currently only charge £45 plus VAT per person for a positive trace, and nothing for a negative one. A trace can therefore be a worthwhile small investment to improve the chances of your case being enforced.
David Carter
Director, The Sheriffs Office
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of
Process serving: a guide
Process serving is quite straightforward. In essence it is legal proof of delivery of documents from a Court or solicitor, or for any legal matter. Once the document has been served, the process server confirms that they have delivered these specific documents (they would normally have a copy of the papers) to the person specified by swearing an affidavit or a statement of truth. The affidavit must be signed in the presence of a commissioner of oaths, normally a solicitor.
Affidavits are still required to be sworn in certain circumstances, including in applications for freezing injunctions and search orders, and in committal proceedings.
The final stage of the process is to then deliver the copy of the papers and the sworn affidavit or statement of truth to the client.
When choosing a process server, especially if it is a service you need to use on a regular basis, it is wise to select a company that can provide full nationwide coverage so that you can ensure your documents are delivered within the time frames specified.
If the papers being served are the first stage in what is likely to become a judgment enforcement, than an HCEO might be your best choice, as the local HCEO would then manage the entire process and will know the defendant by sight, as well as where they live and work. One of my colleagues enforcing a judgment actually chased a defendant down the street once having previously served papers on him because he recognised him and knew he was the right man!
It almost goes without saying that you want someone to do a professional job. But what you really need is someone who gives the extra service and does a really thorough job. For example, we once had to serve papers separately to Mr and Mrs Smith. We served the papers to Mr Smith and he offered to take those for his wife, but we insisted on serving them directly to Mrs Smith. It may sound pedantic, but it can make the difference between a successful action and failure for the client.
So process serving: quite simple and straightforward, but it is an important part of the legal process and needs to be handled professionally.
David Carter
Director, The Sheriffs Office
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of
FSB approval for CreditPal
Recently I wrote about the problems caused by published company accounts being so out of date for lenders to make decisions. Well, there may be a solution.
On
It seems a very simple service – you upload a copy of your accounts data every month (the service supports most accounts packages and you don’t need to upload nay new software) and the service builds summarised up-to-date management accounts, which you can check thoroughly before submitting them.
No supplier or customer details are shown and you can decide what information can be seen by others checking out your business. You also get an enhanced credit review from Graydon, so you know your current credit position and what influenced it.
To find out more, take a look at the CreditPal site.
David Carter
Director, The Sheriffs Office
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of
Debt recovery – what works best?
We have had many requests from readers of these articles for a discussion area on key industry topics. So here is the first one! Please post your comments – asking questions, answering others and giving feedback – to make this a lively and interesting forum discussion area for all.
The first topic is: What is the most effective system for preventing and/or recovering outstanding debt?
To take part, just add a comment to this post. Thank you!
David Carter
Director, The Sheriffs Office
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