Often, people are not afraid to say, "I will take you to Court!" when they are owed a debt. However, a burning question I have had recently is "Can I really?" despite their exclamation to their debtor.
You need to make sure you have the basics right first as issuing a county court claim isn't always as straightforward as you might think.
We have written a blog on this issue previously – Coronavirus: Debt Recovery – Should I issue proceedings? – Keebles
This blog will focus on the top five mistakes we believe people make when they are looking to or have already issued court proceedings:
- The name
- People do not always realise the importance of making sure the name of the Claimant or Defendant is correct. If it is missing letters, words or isn't even the name of your opponent, this will likely cause significant difficulties, particularly when you are looking to enforce the Judgment or to respond to the proceedings effectively.. Companies have legal status separate to individuals and so it is important to ensure you make clear if your opponent is a company by quoting their name exactly as it appears at Companies House. If your opponent is an individual, or sole trader, include their full name and any name by which they trade. If your opponent is a partnership you also need to make this clear.
- The necessary documents
- We have been approached previously by clients who, unfortunately, did not have sufficient evidence to support their position. Whilst it is not uncommon for business to be done via a 'gentleman's agreement it is always better to have written evidence to support your position. Judges much prefer documents to a witness's recollection of what happened. It is a good idea to collate all the documentation you have first before deciding whether to issue a claim.
- People who are not used to the legal process don't often think beyond obtaining a Judgment. However, more often than not, it is a two-step process: firstly, obtaining a Judgment and, secondly, enforcing it in the event of non-payment. If a Defendant does not have sufficient assets or is insolvent, you could find that you have spent a significant amount of money obtaining a Judgment that amounts to a pyric victory. Obtaining a Judgment is not the same as recovering your money. You may want to do some due diligence on the Defendant's financial position before deciding whether to issue proceedings
- All the debt due or only part?
- Sometimes clients ask us to pursue claims for all invoices due from a particular customer, when only some of those invoices are overdue. This is not always possible, depending on the precise terms of your contract(s). It is important to look at the situation as a whole. It is far more practical to wait a little longer if it means you can issue proceedings for a greater sum, rather than having to issue numerous claims as further invoices fall overdue.
- Service of Documents
- Under the Civil Procedure Rules, legal proceedings can only be validly served on your opponent by certain specified methods. It is very important that you use an appropriate method, or you could find that your claim is struck out. Whilst most people tend to use e mail as a form of communication, documents can only be served by e mail in specified circumstances. People often fall foul of the service rules and find out, too late, that they have not validly served a document.
As you'd expect of the top 200 legal firms in the UK, we will always ensure everything we do on your behalf is in accordance with the relevant rules and regulations. We pride ourselves on 'going the extra mile' to avoid any unnecessary costs which could have be incurred in the future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.