Commercial debt recovery

Transcription

1 Commercial debt recovery hilldickinson.com

2 COMMERCIAL DEBT RECOVERY Outstanding debt, irrespective of volume, is detrimental to operations. For large organisations, unpaid monies add up and can considerably reduce real profit. For a small to medium-sized enterprise, a reduction in liquid assets may critically affect its ability to survive in the current economic climate. More so than ever, recovering debts has a significant and positive impact on a business. As debt recovery and litigation specialists, Hill Dickinson can improve your cash flow in the short and long term, turn balance due into net profit, reduce your bad debt and improve your prospects of trading successfully. We have specialist expertise in debt recovery and litigation with long-standing relationships with factoring companies, banks, freight hauliers, manufacturers, NHS trusts, retailers and companies in all industries. We can also advise and act on matters where a debtor is based outside the jurisdiction of England and Wales, whether that be in another part of the UK, in a member state of the European Community or elsewhere in the world. We are committed to providing our clients with the highest level of service and certainty of cost wherever possible.

3 Our fees We can provide at the outset a formal letter before action to your debtor, at a cost to you of only 10 plus VAT. We will also claim interest and compensation on commercial debts pursuant to the Late Payment of Commercial Debts (Interest) Act Compensation will be claimed in the amounts set out in the table below and calculated per invoice as opposed to the collective value of the invoices claimed. Where a full recovery is made of the compensation claimed we will invoice you 50% of that compensation. If court proceedings are necessary, we limit our initial fees for issuing proceedings and, if appropriate, entering judgment in default or judgment upon an admission to the following fixed fees that the court awards a successful litigant, together with the relevant court fee: Debt recovery fixed fee costs Size of debt Our fixed commencement costs Court fee Late payment compensation Default judgment fee* Judgment or admission fee Does not exceed /25 40/ /25 40/ , /25 40/55 1,000-1, /25 40/55 1,500-3, /25 40/55 3,000-5, /25 40/55 5,000-15, / /35 55/70 15,000-50, /35 55/70 50, , /35 55/70 100, , , /35 55/70 150, , , /35 55/70 200, , , /35 55/70 250, , , /35 55/70 300,000 or more 100 1, /35 55/70 * Assuming that a full recovery is received from your debtor, these fixed costs will be included within the amount recovered and there will be no additional charge to you. The judgment fee varies depending on whether or not a debtor files an acknowledgment of service or not or if the debtor files an admission. 3

4 Claims outside the jurisdiction If the debtor is based outside England and Wales, but the English and Welsh courts have jurisdiction to hear the claim, we will charge the following fixed fees in addition to the initial fixed costs. These fixed costs will be awarded by the court upon judgment being entered, either in default, upon admission or at trial: Certificate of service 15 Service in Scotland, Northern Ireland, Channel Isles and Isle of Man Service elsewhere 77 Court application fee for judgment 50 in default An agent s fee will also be incurred for serving the proceedings outside of the jurisdiction. We shall provide you with an estimate of that fee prior to instructing an agent and will endeavour to recover that fee if the claim is successful.

5 Contested debts - small claims track matters Should the debt be contested and allocated to the small claims track, we offer the following fixed fee rates to give you certainty: ADVICE UPON RECEIPT OF A DEFENCE DISCONTINUE Following our initial advice, should you immediately instruct us to discontinue the claim APPLICATION TO LIFT A STAY Following the defence being filed should the court automatically stay the claim we are required to make an application to lift the stay DIRECTIONS QUESTIONNAIRE SETTLEMENT Should settlement be agreed prior to the preparation of witness statements for the small claims hearing or preparation of any summary judgment/strike out application SUMMARY JUDGMENT/STRIKE OUT If successful and judgment is obtained, or if settlement is reached prior to the hearing, the small claims hearing is avoided. If unsuccessful the matter will proceed to the small claims hearing SMALL CLAIMS HEARING Amount Up to , Note Red boxes are mandatory should the matter proceed to a small claims hearing. Blue boxes are optional depending on the circumstances of each matter. All figures referred to above are exclusive of VAT. Each stage is additional and will be invoiced upon completion (or part thereof) of that stage. 1. In addition to the Court fees listed above (which the Court will award you if you are successful) we will charge disbursements in accordance with our standard terms of business. These include (but are not limited to) printing, photocopying, files, folders, dividers supplied by HDOCS, any other HDOCS charges, CDs, DVDs, agent s fees, bank charges and advocacy charges (such as agent s fees or junior counsel s fees) which need to be incurred for attendance at a hearing. With regard to advocacy charges, we instruct agents or counsel to attend hearings for fees of approximately 100 plus VAT to 300 plus VAT. These fees are estimates only and we will notify you should these fees be greater. The above fees are correct at the time of this brochure but are subject to change. We will of course notify you accordingly if they are to be increased. 5

6 Counterclaims If your opponent brings a counterclaim then our fixed fees are increased by 25% in small claims matters and 50% in fast track matters. Please note that in small claims matters the above costs (save for the fixed costs of issuing the claim and court fees) are generally irrecoverable from your debtor even if you are successful. The court normally only orders the loser to pay the winner s costs where the losing party has acted unreasonably in the claim. We have experience of obtaining such orders and will always seek an appropriate costs order.

7 Contested debts - fast track matters For defended claims between 10,000 and 25,000 we are also able to offer fixed fees as set out below: ADVICE UPON RECEIPT OF A DEFENCE REPLY TO DEFENCE (IF APPROPRIATE) Costs Court fee1 2 Total REQUEST FOR FURTHER INFORMATION/RESPONSE SUMMARY JUDGMENT/STRIKE OUT If successful and judgment is obtained, or if settlement is reached prior to the hearing, the trial is avoided. If unsuccessful the matter will proceed to the trial and these costs and disbursements will still be charged. Costs Court fee1 2 Total SETTLEMENT/CONSENT ORDER MEDIATION Costs Court fee1 2 Total DIRECTIONS QUESTIONNAIRE DISCLOSURE WITNESS STATEMENTS PRE-TRIAL CHECKLIST TRIAL COSTS MANAGEMENT CONFERENCE (IF APPROPRIATE) Costs Court fee1 2 Total MISCELLANEOUS APPLICATIONS (COSTS ARE PER APPLICATION) Costs Court fee1 2 Total EXPERTS (IF REQUIRED) Costs Court fee1 2 Total Costs Court fee1 2 Total Costs Court fee1 2 Total Note Red boxes are mandatory should the matter proceed to trial. Blue boxes are optional depending on the circumstances of each matter. All figures referred to above are exclusive of VAT. Each stage is additional and will be invoiced upon completion (or part thereof) of that stage. 1. In addition to the Court fees listed above we will charge disbursements in accordance with our standard terms of business. These include (but are not limited to) printing, photocopying, files, folders, dividers supplied by HDOCS, any other HDOCS charges, CDs, DVDs, agent s fees, bank charges and counsel s fees which we notify you of in advance. 2. Expert and mediation fees will vary depending on the nature of each matter. 7

8 Multi-track matters In contested multi-track matters our standard hourly rates apply. A costs estimate will be provided following receipt of a defence and regular costs updates provided. We will utilise our standard monthly billing process. Our aim will be to try and recover most (if not all) of your costs from your debtor. Standard hourly rates: Level Partner Legal director Associate Solicitor Trainee/paralegal Fee 300 plus VAT 250 plus VAT 200 plus VAT 150 plus VAT 120 plus VAT These rates are reviewed in May of each year. Although our costs will normally be calculated by reference to either the fixed fees or on an hourly rate basis, we can also consider alternative fee arrangements including: Conditional fee arrangements Contingency fees Damage based agreements

9 Insolvency proceedings Insolvency You can, as an alternative to county court proceedings, commence insolvency proceedings on the basis that there is no dispute to the debt and if it is more than 750. Insolvency proceedings are commenced following an unsatisfied demand for payment and there are two types of insolvency proceedings, bankruptcy for individuals and winding up for corporate debtors. Fees Our fee for issuing a statutory demand to an individual debtor, or a three day demand for payment from a corporate debtor, is 100 plus VAT. A statutory demand must be personally served on an individual debtor and the process server s fee will be no more than 100 plus VAT. If that demand for payment remains unsatisfied and there is no valid dispute to the debt, our fixed fees for conducting the bankruptcy or winding up proceedings are 750 and 1,500 plus VAT respectively. There will also be the disbursements listed in the table below: Disbursement Bankruptcy Winding up Court petition fee Official receiver s deposit 750 1,250 London Gazette advertisement fee Agent s fee for service of petition Agent s fee for hearing Agent s fee for bankruptcy searches Bankruptcy search court fee N/A 75 plus VAT 100 plus VAT 100 plus VAT 75 plus VAT 150 plus VAT 35 plus VAT n/a 45 n/a Please note that insolvency proceedings can be used post judgment as an alternative method of enforcement (see later at sections 2.2 and 3.1). 9

10 Enforcement Should it be necessary to use enforcement procedures to recover a judgment debt which a debtor has failed to pay, we will cap our fees at the amounts set out below. Should our fees be less than the amounts below we will limit our fees to the lesser amount as follows: Enforcement Our costs Disbursements Bailiff up to High Court up to Enforcement Officer Attachment of earnings up to Third party debt order Charging Order on land or property up to up to Order of sale up to /480 Order to obtain information up to Enforcement against individuals and Corporate Debtors 1.1 High Court enforcement officer (HCEO) The HCEO could be instructed to attend at the debtor s address and seek to levy execution upon any goods held there. You should, however, be aware that the HCEO cannot levy upon tools of trade, or leased goods, and cannot force entry into a residential address. If the HCEO successfully levies execution, the HCEO s fees are met in their entirety by the debtor. If the HCEO cannot levy execution, he will look to you for payment of his abortive fee, which would be 75 plus VAT Advantages If the HCEO makes a recovery, his fees are calculated on a sliding scale and are payable by the debtor. The HCEO works out-of-office hours and is enthusiastic in attempting to secure a recovery Disadvantages Our fees are not recoverable save for the Court fee we pay on your behalf.

11 1.2 County Court bailiff For debts of less than 600, we can only instruct the County Court bailiff to attend at the debtor s address. However, like the High Court Sheriff, the bailiff is unable to force entry into a residential property or levy on goods that are leased or which are tools of the trade. 1.3 Third party debt order If you are aware of anyone who owes your debtor money or if you have the debtor s bank details, perhaps from a previous bank transfer or cheque, then an application can be made to the court for what is known as a third party debt order. An order is obtained from the court, that the third party will pay you the debt owed to the debtor and the matter is listed for a hearing, to ascertain whether or not the funds ought to be released directly to you Advantages Provided the debt is still owed or the debtor s bank account has sufficient funds, this method of recovery is swift Disadvantages There must be a debt owed or funds within the bank account on the day the third party debt order is served. It can be a hit or miss procedure to calculate when funds are in a bank account. Costs can be incurred only for there to be no funds available. 1.4 Charging order and order for sale This is not strictly a method of enforcement as a charging order only gives you security. It does not produce payment. Enquiries can be made of the Land Registry to ascertain whether or not the debtor has an interest in the property against which the judgment debt could be secured. Please note, where a property is jointly owned and the creditor obtains judgment against only one of the owners of the property, the security provided is somewhat precarious. Such a charging order attaches to the debtor s beneficial interest and, whilst it is unusual, it may be overreached. It is possible for the joint owner to warn off the charging order at the Land Registry. However, if that were to happen, we can apply for an injunction for the debtor s share of the sale proceeds to be paid to you. 11

12 If a charging order is made, you are entitled to be awarded fixed costs of 110 plus disbursements. Once the final charging order has been obtained, if the debtor does not make payment, you can apply to the court for enforcement of the charging order by way of an order for sale. This is an equitable remedy and at the court s discretion. It is not guaranteed to result in an order for sale, but it is usually granted, provided the court is persuaded there is sufficient equity within the property for all secured creditors to receive payment and it is just and equitable so to do. If the application is successful, both owners (the joint owner/nondebtor is brought into the proceedings as second defendant) are ordered to pay the costs. In the event that the court grants the order for sale and possession of the property, you are then responsible for insuring the property and it may take some time to find a willing purchaser Advantages As a secured creditor, you will rank over any unsecured creditors, in the event that another creditor applies to have the debtor made bankrupt If the debtor sells the property, you should receive payment subject to there being sufficient equity available after payment to any other secured creditors whose charge ranks ahead of yours You can secure your debt at minimal cost and there is no requirement for you to apply to the court for the property to be sold. You can simply rely on your security until such time as the property is sold or repayment is made Disadvantages The co-proprietor may seek to have the charging order warned off The granting of an order for sale is discretionary. There is no guarantee (even if there is equity within the property) that an order for sale will be granted If you wish to apply to have the debtor adjudged bankrupt, you may have to relinquish the security afforded by the granting of a charging order Until such time as a final charging order is obtained, you cannot establish the amount required to redeem prior charges.

13 2. Enforcement against individuals only 2.1 Attachment of earnings order If a debtor is gainfully employed (not self-employed), or if he/she is a company director, an application to the court can be made for an attachment of earnings order. If the attachment of earnings order is obtained but then defaulted upon (e.g. the debtor changes jobs), we will apply to the court for the order to be directed to the new employer Advantages Provided the debtor remains gainfully employed, you receive regular payments Disadvantages It can be take an inordinate length of time to obtain the attachment of earnings order and interest does not accrue on the debt from the date of the application. If the debtor changes employment, the creditor has to embark upon the procedure again which can take considerable time. Also, this firm s charges for applying for the attachment of earnings order are not recoverable from the debtor. 2.2 Bankruptcy proceedings A statutory demand for bankruptcy could be served upon the debtor. Upon service of the demand, the debtor has 21 days within which to make payment. Upon the expiration of the 21-day period, a bankruptcy petition may be presented. Once a bankruptcy order has been made, any assets that belong to the debtor (i.e. his interest in any property) vests in the official receiver. The official receiver will interview the debtor and, in the event that there are substantial assets, the official receiver may appoint a trustee in bankruptcy to recover those assets. Having said that, the official receiver may take the view that it is not in the public interest to appoint a trustee, and look to a creditor to appoint a trustee and for that creditor to be responsible for the trustee s fees. The purpose of appointing a trustee in bankruptcy is in order for the trustee to realise the debtor s assets in order that all creditors of the debtor may obtain payment. 13

14 If the trustee is successful in realising the debtor s assets, then creditors will receive payment as follows: - trustee s fees - secured and preferential creditors - petitioning creditor s legal costs - unsecured creditors As can be seen from above, a petitioning creditor will receive payment of the costs of applying to have the debtor made bankrupt prior to any unsecured creditor receiving payment. Whilst the petitioning creditor will be a preferential creditor in respect of the legal fees of the bankruptcy proceedings, the petitioning creditor will not rank as a preferential creditor in respect of the debt. When the trustee is appointed, the trustee will have power to sell the debtor s property. Whilst the court may defer an order for sale for 12 months, to enable the co-owner to seek to sell the property of his/her own volition, the court will normally grant an order for sale of the property Advantages The trustee has far greater rights and remedies than a secured creditor applying for an order for sale would have The trustee s fees are met from any assets recovered The petitioning creditor s legal costs are classed as a preferential debt Disadvantages Your debt would rank with all other unsecured debts. It may be that, if the debtor has substantial secured and unsecured creditors, you will not receive payment in full or even in part If the official receiver does not appoint a trustee, a creditor, in order to progress the matter, may seek to appoint a trustee. However, a creditor would then be responsible for the trustee s fees (and associated legal fees), which may or may not be recouped from the debtor s assets The trustee cannot apply for a jointly-owned property to be sold for a period of 12 months, (commencing on the date upon which the debtor is adjudged bankrupt).

15 2.3 Apply for an order to obtain information from judgment debtor It is for a judgment creditor to enforce a judgment, not the court. Enforcement action can simply mean you throw good money after bad. This application may obtain information from a debtor so you can make a more informed decision on which method or methods of enforcement should be utilised (this procedure was formerly known as the oral examination procedure). If, the debtor fails to comply with the order to attend court, the debtor can be held in contempt of court. The court has the power to issue a penal notice which, if the debtor fails to comply with, can lead to the debtor being imprisoned (although this is rare). The order to attend at court must be personally served on the debtor. Strangely, the court can order you to pay the debtor s travel expenses for attending court

16 3. Enforcement against Corporate Debtors only 3.1 Winding up petition If the debtor company fails to comply with a three day demand, you can issue a winding up petition against the debtor company which can result in its liquidation. The official receiver or a liquidator will then administer the company s liquidation and your costs will, like in bankruptcy, be classed as a preferential debt and be paid before the claims of unsecured creditors (including your own). There is, however, no guarantee that there will be sufficient assets which can be realised to meet your costs and unsecured claim.

17 Key contacts For further information, please contact: Philip Sheard Legal Director +44 (0) James Stephenson Solicitor +44 (0) Justine Chean Paralegal +44 (0)

18 Hill Dickinson The Hill Dickinson Group offers a comprehensive range of legal services with more than 1350 people including 175 partners. The firm delivers advice and strategic guidance spanning the full legal spectrum, from noncontentious advisory and transactional work to all forms of dispute resolution. Hill Dickinson has the expertise to provide all the legal services you need from one dedicated team, and prides itself on fostering the strongest client relationships. hilldickinson.com Liverpool Manchester London Sheffield Piraeus Singapore Monaco Hong Kong