Making your case enforceable
by David Carter on 23 October 2009
It may sound so obvious – of course you would want to make your case enforceable, otherwise why go to all the effort of getting a CCJ then High Court Writ! But so often we find that just the smallest incorrect detail can render all that work redundant, leaving you out of pocket and out of luck, even when the case was a “dead cert”.
Here’s a checklist worth keeping close at hand to increase your chances of making your case enforceable and collecting your money.
- Have the correct defendant- Use correct name for the defendant
- Name both parties if the defendant is a ‘trading as’
- Have the correct address or addresses for the defendant
- Check the defendant is not subject to insolvency proceedings
- Make sure you sue for the correct monetary amount owed
Have the correct defendant
If your customer is ABC Services Ltd, then issue proceedings against ABC Services Ltd, not an incorrect party such as a company director or the employee who actually placed the order, unless this person signed a personal guarantee (and thus became a guarantor).
Use correct name for the defendant
A case can become unenforceable if you don’t have the defendant’s name 100% accurate, for example, putting down ABC Services Ltd when the correct name is ABC Services UK Ltd, or ABC Services when it should be ABC Services Ltd (or vice versa).
Even spelling their name incorrectly, whether for a business or and individual, can ruin your chances. However, the good news is that it is easy to check the correct business name. Companies House offers a free Webcheck service for limited companies.
If the defendant is an individual and you want to be sure you have the correct person, it is possible to run a trace on them. This is normally done for a small fixed fee.
Name both parties if the defendant is a ‘trading as’
Don’t just sue ABC Services as it is difficult to enforce against this. Sue ‘John Smith T/A ABC Services’ to cover all bases. Don’t forget that many limited companies also often trade as another name, so put both names in.
Restaurants in particular can be difficult. For example you may sue ‘Great Food Restaurant’ but there is almost always a limited company that is the actual owner. You may find that you actually need to sue XYZ Restaurant Group Ltd T/A Great Food Restaurant.
You then need to ensure that when you supplied the goods or services that XYZ Restaurant Group Ltd was the owner at that time. Many restaurants change hands regularly, often to relatives or even with the same directors but with a different registered company.
If you are to sue a trading name, ensure that you put the words ‘A Firm’ in brackets after the name. However, we would always recommend you name the individual (s) who run it as well. Have the correct address or addresses for the defendant
This is particularly important if you are issuing proceedings. You may decide to sue Joe Bloggs, but you use the old address that he left a year ago. Even if we find him, he will have grounds to have judgment set aside and proceedings may have to be reissued at his new address, which then may be defended. This would also give the defendant time to hide/transfer any assets.
If you use the registered address for a limited company, this could be their accountant’s offices. It is worth checking this and then looking for a trading address. You can check with Companies House or look at the defendant’s own website where they usually publish a phone number and sometimes the trading address, so you can call to check.
When dealing with individuals, some claimants drive by or know the defendant lives at a property. You can check with BT Online Directory Enquiries , if the defendant is the phone account holder.
Check the defendant is not subject to insolvency proceedings
If they are, you may well decide that the time and cost of suing would be good money thrown after bad. You can check with Companies House to find out if a company is in Liquidation or Administration with an ‘L’ or and ‘A’ next to the name.
The Insolvency Service allows you to check individuals and trading as names for bankruptcy and IVA. They also have a helpful Guide for Creditors on their site.
There is also more information purchased by companies such as The Sheriffs Office where we can check for details such as other judgments, Directors details and accounts, should you need more data.
Make sure you sue for the correct monetary amount owed
We have seen cases where some claimants have added spurious figures for loss of earnings and other unrealistic amounts which cannot be substantiated. These will often be defended and judges do not look kindly on these claims. You are entitled to add interest if you choose
Following this simple check list will greatly increase your chances of getting a case that can be enforced – and that means a much better chance of receiving the money you are owed!
© Sheriffs High Court Enforcement Ltd. Please contact us to request permission to reproduce this article.
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 England and Wales frequently changes. The author strongly advises the reader to take legal advice before embarking on any enforcement action.
