Time was, you’d go to court and maybe jail for owing somebody money. Until the late nineteenth century, every year the debtors courts throughout the UK would lock up thousands of people who were unable or unwilling to pay their debts.
In recent times, the ignominy of debt has receded considerably if not entirely. Most of us have debt of some kind, whether a mortgage, loan, credit card or student loan. Modern society doesn’t function without debt. Indeed, recent history reminds us that sometimes untrammelled debt can threaten the very foundations of society but that’s a well trodden path which we’re not taking today.
Just for today then, let’s assume a few things. You are owed money. You’ve had the good sense to instruct the experienced people at Mitchells Roberton to recover that debt for you. They have duly obtained a decree (court judgment) ordering Debtor McShifty has to pay you £X plus interest and expenses.
How do you enforce the court order? In other words, how do you convert an order for payment into money in your hand?
The more information you get hold of about the debtor at the outset, the greater your chances of recovery if there is a problem down the line. Even the commencement of a relatively simple court process can work… and you can be awarded most of the cost of obtaining a court order. Thereafter, enforcement options are generally, although not strictly, in order of preference based on the method (or the threat of same) which most reliably produces a return. The appropriate method will depend on the individual circumstances:
- Payment arrangement – armed with the court order for leverage, we negotiate with the debtor and agree how and when they will pay you.
- Earnings arrestment – if the debtor is currently working (not self-employed), a portion of their wages are “arrested” at source and paid to you by their employer. Ideally, you would know the name and address of their employer but an employment trace can be done.
- Sequestration (bankruptcy) – if the total debt exceeds £3,000, we can ask the court to make your debtor bankrupt. A trustee will then be appointed to ingather their assets including any homes, buildings or land. Successful recovery of your debt depends on the debtor having sufficient assets to meet their liabilities, not only to you but the other creditors as well.
- Inhibition – if the debtor owns heritable property (land, buildings), we can register an inhibition which would prevent them selling or mortgaging any property without first settling the debt due to you.
- Bank arrestment – if the debtor has sufficient funds in the bank, we can “arrest” those funds which the bank must then transfer to you. You need at least the name of the debtor’s bank. Bank account details can be found on cheques and are sometimes provided during transactions for making payments.
- Attachment of moveables– Sheriff Officers list and value “non-essential” items in the debtor’s home or business premises with a view to selling at auction to realise the debt. The threat of losing these items and the embarrassment of having Sheriff Officers there can scare debtors into payment. This approach is only recommended where the debtor is known to own valuable non-essential items e.g. vehicles, jewellery.
- In exceptional cases, if recovery prospects are poor because the debtor has no assets, we may recommend no current action. However, a court order lasts for 20 years so at some point it will pop up on a credit search or otherwise give the debtor a sufficient problem that they will approach you to settle the debt.
The obvious common thread in each of the above options is knowledge of the debtor and their financial position. Know who you are dealing with.
You don’t need to know whether the lady selling you a newspaper owns her own house. But if you’re paying a decorator a couple of thousand to do up your house, if they botch it, how do you know where to seek compensation from them? What if you do contract work for somebody and they don’t pay you? Who is the person behind the trade name? Has the limited company (small print at the foot of the quote) got any assets or will it just close if pressed to pay?
At the start, ask them for bank details rather than paying cash. Ask for an address. Take a note of car registrations. Find out where they work. It is perfectly reasonable to make relevant enquiries at the outset especially where you have no prior dealings with someone. If this scares someone off, that should tell you everything.
Some of this information is publicly available but in most cases, it can only be obtained at the outset when relations with the debtor are good. When you fall out, you can be sure the garrulous amity which marked your first pleasant discussions will disappear. Most likely, your pleas for payment will be ignored.
Debtors are often uncooperative and trying to recover a debt in those situations can be stressful. If you need assistance recovering a debt of any size or type, Paul Neilly or Hugh Grant in our Court Department can help you.
So, as it ever was (and just because lawyers like Latin): Scientia Potentia Est – knowledge is power.
If I can help or you would like further information then please contact me, Paul Neilly, by email pdn@mitchells-roberton.co.uk or by phoning me on 0141-552-3422.