Debt Proceedings

Debt recovery proceedings fall into 3 distinct categories:

A. Small Claims Courts cases – In general a small claim is one where the value of the claim is not more than £3,000.

B. County Court Cases – Generally these are debt cases were the amount sought is greater than £3,000 but less than £30,000.

C. High Court Cases – these are cases were the value of the claim is more than £30,000.

1. How do I decide if I should issue a Debt claim?

The first thing you must do is to decide if issuing a claim is the best way for you to proceed. There are a number of points you should consider.

If you are successful in your claim will you be able to recover the money?

This is perhaps the most important question you should ask before deciding to proceed with a claim. Even if you succeed in your claim, if the respondent has no money to pay the amount of the claim you may not get your money.

The court does not pay the amount that is awarded; it only decides who is liable.

Before you begin any claim you should know that there are a number of searches that can be carried out by us for a small fee. These will show whether the respondent already owes any money to other people or is in financial difficulties. You can then use this information to help you decide whether or not to issue your claim. The Enforcement of Judgments Office (EJO) search is particularly useful in this context. The EJO is part of the Northern Ireland Courts and Tribunals Service. This search will reveal if there are any other creditors actively pursuing the debtor and the amount of any related debts or judgments.

If the claim is against a company it is possible to apply for a Company Search to be carried out. This should tell you if the company is still trading, what their balance sheet assets are and if there are any pending applications in relation to the company’s status.

A bankruptcy search can also be carried out prior to the issue of proceedings. This will reveal if there are any pending applications to bankrupt the debtor.

Can I settle the claim with the respondent directly ?

We can try to settle your claim directly with the respondent by writing to them outlining your claim. If we do not receive a reply, or if the reply we get is not satisfactory, we advise the debtor that you intend to start legal proceedings. If you still do not receive a satisfactory response, we will discuss with you the possibility of bringing proceedings. Correspondence from a solicitor can sometimes be enough to encourage a reluctant debtor to discharge his or her liabilities.

If you have carried out the above steps and the debtor has still not paid, we can issue the appropriate proceedings for you upon your instructions.

I have been successful, what happens now?

The court will issue a decree for the debt in your favour. Please note: A decree or order made by the small claims court is a CCJ (County Court Judgment) and may affect a respondent’s credit status.

What happens if the respondent does not comply with the order?

The respondent should pay you this amount within a reasonable time. A period of between 14 and 28 days is usually considered acceptable. If they do not, you may proceed via one of 2 routes:
1. Apply to have your decree enforced through the Enforcement of Judgments Office (EJO).
2. Issue a bankruptcy or winding up petition if the amount decreed is more than £750.00

APPLYING TO EJO TO ENFORCE YOUR JUDGMENT

The Enforcement of Judgments Office has the power to make an attachment of earnings order, order the seizure of goods, or register an Order Charging Land against any property owned by the debtor.  However, if the Enforcement of Judgments Office found that the debtor had no significant assets or if they already owe money to a number of other parties a Certificate of Unenforceability may be issued.

Applying to the EJO to enforce a judgment is a two-stage process and has associated fees:
Stage 1 – Notice of Intention to Enforce a Judgment (Form 1) – £20.00
.
Stage 2 – Application to Enforce a Judgment (Form 3)

The following table represents fees payable on enforcement applications and is effective from September 2007. If the amount of debt falls between two bands, you should go to the next higher band and apply the fee for that amount. (For example debt is £58.60, the debt should be rounded up to £59.00 and the fee payable for that amount is £17.70).
The debt amount is in bold text with the corresponding fee to the immediate right.

Presenting a winding up or bankruptcy petition.

This may be more advantageous if the debtor is keen to preserve his commercial position.  We often find that debtors react positively to the first stage in this process, namely service of a Statutory Demand. The fee for this is approximately £80.00.  If the debtor does not pay the debt owed within 21 days, then you may proceed with bankruptcy.  A deposit to Insolvency Service must be paid and the fee for this varies. A Bankruptcy petition fee of £150.00 is also required.   A Certificate of search costing £20.00 must also be obtained.  If matter proceeds to hearing, Counsel would generally be retained.  Fees for solicitor and Counsel are generally charged on the basis of time spent in pursuing the case.

Please note that at all times we here at John J McNally & Co. endeavour to deal with your case as expeditiously and economically as possible.