Successful Enforcement: Knowing your Defendant

Successful Enforcement: Knowing your Defendant

If you’re owed money, and are thinking of going to see a solicitor for help in recovering the monies owed to you, it is important to know as much as possible about the party who owes you money (“the defendant”) before formal Court proceedings are issued. This will ensure that you improve your chances of a recovering the money owed to you.

Things to consider:

1) Know who you are bringing a claim against

It is important to identify the correct party to sue. You may well have been dealing with a “one man band” but that one man band may be trading as a company and the two are not interchangeable. For legal purposes they are two separate legal identities.

2) Know Your Defendant

It is important that you provide your lawyer with as much information about the defendant as possible, as this information will help decide whether it’s worth bringing a claim and where you do successfully bring a claim, the appropriate enforcement avenue to follow. Some of the information may come through your dealings with the defendant, but it is amazing how much you can find out through online searches. There are also private investigators that can uncover information about your defendant.

Things that may be useful to determine include:

  • Insurance: Is the defendant insured? If so, the insurers may take over the claim you make and if you’re successful, are more likely to pay up on any judgment or order.
  • Bank Account: Does the defendant have a bank account? Even if you know the bank they are with but have no account details, this may help with enforcement of any judgment you have.
  • Property: Does the defendant own the home he or she lives in? Do they have any buy-to-let properties? Where are these assets located?
  • Financial Means: Is the defendant worth pursuing? If the defendant is not insured, you need to consider whether the defendant is worth suing. Litigation may simply be a matter of throwing good money after bad.
  • Location: If the defendant does have assets, you need to ascertain where they are located and whether they are in this country as matters become more complex (and more expensive) to enforce when assets are out of the jurisdiction of England & Wales. Sometimes, it becomes impossible to enforce a debt overseas.

3) Check your contract

A good contract should contain provision for the payment of interest in the event of default of an invoice. By regularly sending out statements during an unpaid period, you can show the accrual of interest, which may motivate the defendant to pay.

Types of enforcement proceedings

Once you have a judgment confirming the amount owed to you, that’s not the end of it. You have to find a way of ‘enforcing’ the judgment.

If the defendant owns a property, you could put a “charging order” on the property to secure the debt on the property like a mortgage. You could then wait until the property is sold or apply for an order that the property be sold to allow your debt to be paid.

Alternatively, if the defendant has assets, such as a car or valuables in the home, you can take out a writ/warrant of control that allows the Court Officer to seize and sell the defendant’s goods to satisfy the judgment.

Another option is to make an application to the Court for an “attachment of earnings order” so his or her employer deducts an agreed amount per week or month from the defendant’s wages.

If you knowing nothing about your defendant, you may be able to obtain an “information order”. This is not an actual form of enforcement but it does force the defendant (or director if the defendant is a company) to attend Court and give information regarding their income and expenditure on oath. If they fail to attend Court as required they can be committed to prison.

How Blaser Mills Can Help

As well as the options above, there are many other types of enforcement proceedings which can be used to recover the money owed to you without the need to go to Court to obtain a judgment.  It is important to seek legal advice to ensure the best option is being taken.

If you would like further advice on the matters raised in this article, please do not hesitate to contact Sangita Manek on sam@blasermills.co.uk or call 01923 725004