Whether you issue the summons yourself or instruct a solicitor you must be able to establish the validity of your claim. To do this you need to:
• state what the claim is for: usually goods supplied, services rendered, or work done
• provide copy invoices or other proof of the debt
• confirm the debtor’s liability
• state the amount of the debt
• establish the legal status of your debtor
• confirm what actions you took to recover the debt prior to issuing the summons
For the last item a copy of your customer’s contact form and final demand letter will be very useful.
Issuing a summons
To issue a summons you will need to complete a form called Request for issue of a default summons: these are available from your local county court free of charge. To this form attach copy invoices, and take or send it to your local county court with the appropriate fee. You are told how much this will be when you collect the form. At this stage in the proceedings, only send copies of your invoices. The particulars of the claim section must contain precise details of your customer’s indebtedness to you. On receipt the court will stamp the form, and serve the summons upon your debtor by first class post, or for a small additional fee by a bailiff.
What your debtor must do
The onus is now on your debtor. Once they have received the summons a debtor can:
• ignore it
• admit your claim, and pay, or make an offer to pay by instalments, or at some future date
• submit a defence
• or submit a defence and/or counterclaim against you
Let’s suppose the debtor ignores the summons; after 14 days have elapsed you can obtain judgement by default. Provided you have an undisputed claim most debtors pay up, or make an offer if they are unable to pay straight away. Accepting their offer will effectively give you an enforceable judgement order against the debtor, in the event that they do not pay as promised.
Defence or counterclaim
Say there is an unresolved dispute, or the debtor claims you owe them money which you have refused to pay; in these cases the court will deal with the matter by one of the following methods:
• pre-trial review
• open trial
An open trial is a formal affair in court to which members of the public are admitted. Both the debtor and you will be in attendance. Each of you will be given an opportunity to give sworn testimony and produce evidence to support your claim. A witness may be called by either side to support their statements, and you will be able to question what the other party or their witness have said.
Arbitration and pre-trial reviews are informal gatherings in the judge’s chambers. The aim of these informal hearings is to reach a settlement of the debt if at all possible, and to resolve any disputes which are at the root of the unpaid debt. The pre-trial review is to establish the best method of dealing with these cases. It will also determine what other evidence may be required, or the type of witness you shall be required to call.
Enforcing a Judgement
Having issued your summons and obtained judgement either by default or via the methods mentioned, it is now time to decide how you wish to enforce the judgement order in the event that your customer still does not pay. The court will not do this for you; only you can decide the right course of action to take to ensure settlement of your debt.
A number of options are available to you to secure payment of the outstanding judgement debt. To decide the best method for you, and to make sure you get paid, the report you procured from the credit reference agency will be an excellent guide. All the forms needed to execute the judgement order are obtainable from your local county court offices. You will find the staff courteous and helpful. All the methods of enforcement described below involve further court fees, but these will be added to the debt. A list of up-to-date charges can be obtained from your local court on application.
Warrant of execution
This document instructs a county court bailiff to enter the defendant’s premises and either levy distress, enter into a walking possession agreement with the debtor, or collect the full amount of the judgement debt in cash. A bailiff will always attempt to reach a cash settlement; failing to obtain payment they will then try for a walking possession arrangement; finally distress will be levied.
With the last two arrangements the bailiff will label certain of the debtor’s assets; those goods which have been labelled cannot be seized under another judgement, nor can the debtor dispose of or remove them. A walking possession agreement allows the debtor time to pay the money owed at a future date. If a distress is levied, or the debtor fails to pay as agreed, the bailiff will return and remove the goods distressed selling them at public auction. A bailiff is unable to force an entry into a debtor’s premises, but once allowed to enter they cannot be refused re-entry. After executing a warrant the bailiff will report back to the court, who in turn will inform you of the outcome of the bailiff’s efforts.
Supposing you know that the debtor has a building society account with ample funds to settle the judgement, or that a third party owes the debtor a sum of money. If you apply for a garnishee order the building society or third party must pay the sum they hold on behalf of a debtor into the court. If they fail to do as instructed they become liable for the debt. This stops debtors hiding cash or assets to avoid payment of outstanding debts.
Attachment of earnings
Only when your debtor is in full-time employment can this method be used. A debtor serving in the armed forces or merchant marine is also excluded, but special arrangements are available for these people — the court will supply you with full details. With an attachment of earnings order the court makes an order for the debtor’s employers to deduct an agreed sum from their wages each week or month, and pay this sum direct to you or to the court, should the debtor have more than one judgement order registered against them.
This is not a method of enforcement. But if you suspect the debtor has not been truthful in his statement of assets or income, you can make an application to the court to question the defendant about their financial means. An oral examination is conducted under oath, and might bring to light information which would allow you to apply for a garnishee or attachment of earnings order.
You might also like:
by Patrick Hogan Running a business is challengin...
Many people tend to equate being an accountant wit...
Fraud is a major cause for worry in many business ...