Category: Litigation

A majority of consumers opt to use the internet to buy goods; from cheap household items to expensive luxury items – often achieving cheaper prices than they would in-store. Plus, they have additional rights under the Distance Selling Regulations, such as a cooling off period and so on.

The rights of consumers buying online are highly protected, but, there are still businesses that thrive on unfair practices that are only established to make profits with little or no regard for consumers. So, what can a buyer do when an online seller fails to adhere to the Distance Selling Regulations or to even provide satisfactory goods?

Perhaps an aggrieved buyer may issue a County Court claim. If so, firstly the buyer will need to know who to issue proceedings against and where to serve the proceedings. This information may be difficult to obtain from a seller whose website has little or no information about the entity behind the website or the trading address (convenient for an unscrupulous seller).

Once a buyer has the details of the seller’s registered company and address, a County Court claim can be issued. The seller/defendant will have 14 days to respond to the claim. If the defendant fails to respond within 14 days, judgment in default can be entered.

Once judgment has been entered, the buyer/claimant can enforce the judgment by way of a warrant of execution to seize the defendant’s goods, which can be removed and sold. But, what happens when the bailiff informs the claimant that his or her money could not be recovered because (1) the registered address is only a postal address with no assets, or (2) the registered address of the defendant is that of a firm of accountants or solicitors? Regrettably, should this occur, the claimant, after incurring Court fees and solicitors fees, may find that he or she has effectively thrown good money after bad.

The risk of buying from an unscrupulous seller can be minimised by checking whether an online seller has disclosed all of its details online, such as its registered company number and address and so on. Searching the business name and address on a search engine may reveal reviews or articles about the business. Buying from a more established website or through established intermediary sites like Ebay or Amazon may lower the risk as they have internal dispute resolution systems in place and the sellers’ details need to be verified before an account can be set-up. Paying by credit card or by PayPal can also provide enhanced protection.

Before issuing County Court or High Court proceedings, it is advisable to consult with solicitors. Our litigation solicitors can weigh-up your prospects of successfully recovering your money from a seller and, as such, whether it is worth investing money into a Court claim.

To ascertain the prospects of success, we would first check to see whether the seller’s address is an operative address, as oppose to a postal address. Often, we instruct expert tracing agents for this purpose, who can find, for example, the trading warehouse where goods may be stored, or other assets which can be enforced against.

If there are assets to enforce a judgment against, if you have a County Court Judgment over £600 it may be advisable to transfer-up your judgment to the High Court for enforcement and instruct High Court Enforcement Officers, as opposed to County Court Bailiffs, since they normally have better recovery rates.

Dion McCarthy, Litigation & Employment Solicitor Advocate

dmccarthy@astonbond.co.uk

When suing in English Courts for a sum of money expressed in a foreign currency, the claim form and particulars of claim must expressly state:

• That the claim is for payment in a specified foreign currency i.e euro or US dollars.
• Why it is for payment in that currency i.e. the claim is for payment in [euro/US dollars] because the contract so provides.
• The sterling equivalent of the sum at the date of the claim i.e. the cross rate of [EUROS/US dollars] to the £ sterling.
• The source of the exchange rate relied on to calculate the sterling equivalent i.e. the rates according to FT.com.

Dion McCarthy, Trainee Solicitor

dmccarthy@astonbond.co.uk

Under Schedule 4 of the Protection of Freedoms Act 2012 “parking place” has the meaning given by section 32(4)(b) of the Road Traffic Regulation Act 1984, which states:

“parking place” means a place where vehicles, or vehicles of any class, may wait;

By virtue of this definition, it would appear that the concept of parking and waiting are the same.

Dion McCarthy, Trainee Solicitor

dmccarthy@astonbond.co.uk

There are many ways in which either individuals or companies can attempt to reclaim monies owed to them by debtors. However, the best way to begin this process is by sending a letter before action that complies with the pre-action protocol. The benefits of sending this type of letter are that if the matter becomes protracted and it then becomes a requirement to go to court, the courts look favourably upon the fact that you made all attempts to resolve the matter before initiating litigation. It must be remembered that litigation is a process of last resort. This letter sets out your claim, the reasons why your claim has come about and timeframes in which the individual or the company must pay the debt. It may also work in getting you money back quickly and with little expense.

If however, this procedure does not prove to be fruitful you may then attempt to use what is known as a statutory demand. A statutory demand is a claim for monies owed to you by a debtor that has not paid and may only be used for a debt of more than £750. This is an exceptionally useful tool for both individuals and companies, once this document has been served the debtor has 18 days in which to either set aside the statutory demand or to obtain an injunction in the case of a company, however, they have 21 days in which to pay the money that is owed. If they fail to pay following the service of the demand you may then make an application to court either to have the company wound up or to issue a bankruptcy petition against the individual. Care must be taken when using this procedure as if the debtor is a company you are then obliged to put a notice in the London Gazette of the fact that the winding up petition has been issued against the company and this will then in turn alert all other creditors of the company that there is a petition being issued. If there are creditors of the company that have either fixed charges, floating charges or first charge holders they will then take precedence over any debt owed to you if you are not a secured creditor.

If however, the debtor is an individual you are then able to make a petition to have the individual made bankrupt. Again this is a catch all scenario and the same provisions as already stated above shall also apply.

It is also pertinent to mention that it is critical that the information contained within a statutory demand is correct and accurate as any material errors may mean that the statutory demand is defective and therefore the debtor can ask the court to set aside the statutory demand. There are also other instances where the court may set aside the statutory demand, for instance if the debt is disputed. If it is clear on the face of it that there is likely to be a ‘genuine’ dispute between the parties then this procedure may not work and you may then need to issue a claim in the County Court.

Service of the statutory demand is also very important, if the statutory demand is not served correctly it may then also become defective. Therefore, it is always a good idea to have the statutory demand served by a process server or alternatively to serve the statutory demand on either the individual personally or if a company by personal service and then complete a certificate of service.

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It is critical upon receipt of a statutory demand that you deal with it in an expedient manner. A statutory demand is a very important document that could ultimately lead to either your bankruptcy if you are an individual or your company being issued with a winding up petition and therefore ultimately being wound up.

If you have personally had a statutory demand issued against you, you must either pay the debt that is owed or dispute the debt directly with the petitioner. If no agreement can be reached relatively quickly directly with the petitioner you must then make an application to the court to have the statutory demand set aside. There is going to be a hearing in relation to this application and you will therefore need to make sure and ensure that you are prepared for the hearing with documentary evidence and your statement with the application must be very detailed. The court will generally set aside a statutory demand if there is a ‘genuine’ dispute between the parties, therefore, it is your responsibility to prove that there is a genuine dispute between yourself and the petitioner. The court will not entertain the facts of any dispute between the parties and will not make a judgment on this, however, the court are only interested in the mere fact that there is a genuine dispute between the parties. The Court may also set aside the application if there is a genuine counter claim for equal to or more than the sum being demanded.

If the statutory demand is issued against the company, the company cannot make an application to have the statutory demand set aside, however, they must make an application to the court for an injunction against the petitioner issuing a winding up petition against the company. It is also important as part of this application that the petitioner does not advertise the fact that they will issue a notice in the London Gazette.

If the winding up petition is advertised in the London Gazette the banks monitor the fact that a winding up petition has been issued against the company and therefore freeze the company’s bank account. This has the effect that it will of course affect your ability to be able to trade as a business and get access to vital money to pay suppliers. The only way to unfreeze the accounts is to make an application for a validation order this will require documentary evidence that there is a genuine dispute or that the company is able to pay its debts, there will be hearing on this issue.

It is important that any statutory demand that it issued against you individually or the company is dealt with very quickly as this may also alert other creditors and they may also begin their own actions for enforcement.

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The normal rule under CPR Part 40.11 is that judgment sums should be paid within 14 days unless the Court orders otherwise.

The Court has the discretion to alter the normal 14 day period and to order payment by instalments. However, this is the exception rather than the norm.

The relevant factors for the Court to consider on such an application are enunciated in three decisions of the High Court:

In Gipping Construction Ltd v Eaves Ltd it was observed that the Court has absolute discretion when deciding if the time period should be extended. However, any application must be supported by proper evidence and prior to the application, it must have been discussed between the parties. Nevertheless, mere inability to pay is no defence and the insolvent debtor must take the usual consequences of insolvency.

In Amsalem v Raivid & Raivid the Court considered detailed evidence when considering the application, such as the claimant’s monthly expenditure, the amount of money in bank accounts and the levels of equity available in property.  Additionally, the judge stated that the application ought to be made within the 14 day period, although the Judge indicated that he would have been prepared to consider extending the 14 day period if there was a realistic prospect that substantial sums could be paid within the following few weeks and months. The Judge stated that under CPR Part 70 the court does not decide how judgments should be enforce, since it is up to the judgment creditor to do so and also stated that it should be an exceptional case where the court interferes with the rights of the judgment creditor.

In Gulf International Bank v Al Ittefaq Steel Products Co & Ors, the Court considered the application for a later payment, but decided that such applications are made rarely and normally only a one week extension would be given.

It is quite clear that the method of enforcement is not a matter for the Court nor for the defendant, it is a matter of choice for the judgment creditor. However, should a defendant wish to attempt to persuade the Court to order otherwise, it is advisable that such an application be made within 14 days from the date of judgment and that a proposal is made in which there is a realistic prospect that substantial sums could be paid within weeks or months. The defendant should also provide evidence of its inability to pay by reference to monthly expenditure and equity in assets.

Experience shows that an individual debtor before a District Judge, for example a single mother on benefits, is likely to be given more sympathy that a large commercial entity with assets, before a Master of the High Court.

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