High Court enforcement disputed debt and fee fight guidance

[albertjohn]

I recently received a visit at our commercial premises from a High Court Enforcement Officer to try to claim a large sum of money which is in fact not owed, (or certainly not in full) claimed by a foreign company. The amount has been in dispute for 2 years but they decided to obtain a judgement in the Country they reside in (an FJ apparently) with which they made an application to the High Court for the purposes of obtaining a Writ of Fi Fa. (All very new ground I have to say - but I am learning)!

 

I managed to visit appropriate court on the same say to get it set stayed and set aside pending a hearing in November on the10th (this coming Thursday). This was a struggle because they were acting upon an FJ so the Regional High Court were nervous about doing anything but anyway they have stayed if (for now)!

 

I have been preparing the documentation/correspondence etc to create the defence against the amount owed which I will be able to prove is grossly over stated and does not take into account credits and payment made.

I have challenged the fees in general with the enforcement officer company but can’t find a truly definitive challenge mechanism on the forum to specifically do this and have now had a reasonably robust letter back from the private firm defending the fees. For example is it the case that the maximum that can be charged for mileage is £50?

 

They also confirmed they are a third party and that they have been instructed by the claimant. Again I have no reason not to believe them but of course the fees etc are quite ridiculous particularly as all the chap attending did was wait around while I got the stay of execution, (though he said this would simply not be possible it was with perseverance).

 

I paid nothing on the day and agreed to nothing but he did compile a list of items and place them on a notice of seizure and inventory form which he signed – I didn’t sign anything.

 

This documentation has never been provided to prove that a judgement has been obtained although I have no reason to believe it does not exist as we were in dispute and some money is owed.

Also the name on the documentation sent with the enforcement guy was incorrect (address details etc) but not sure if this is significant as the Queens Bench High court order is accurate in detail.

 

I am not sure what the protocol is for the hearing itself aside from the dispute about the amount. Should I be asking for specific interpretation of the costs to be taken into account and such like? It looks like a really complex subject by the look of it, regardless of the actual debt itself being in dispute. If the debt is discharged/satisfied where do I then stand with the fees, what are the enforcement company actually entitled to in law which can be upheld ( I can also see some advice on the forum suggesting paying all of the fees then suing the company so that you have more control)?

 

Would ideally like to agree an amount between us and then clear it off in instalments but not if that involves additional charges and fees etc. If we clear the amount we agree is due what is the best way to defend the exorbitant and extortionate fees and any balance owing? I would appreciate as much help as possible as needing to defend this in person and I am somewhat out of my depth and certainly can't afford legal representation or to incur additional costs.

 

Wary of posing too much detail as you might imagine but thought that the situation and some help with it may help others.

[maroondevo52]

Thread moved to Legal Issues Forum.

[ploddertom]

Most HCEO charges can be challenged as quite a few are made up under Misc. You mention the mileage - this is indeed capped at £50 but only if he has driven that may miles, if he has only done a 50 mile trip then that is all he can claim - very few can claim the maximum. I assume you got your Stay on the grounds you were applying for Set Aside and it is this application you would need to concentrate on. If you win your application then all the HCEO fees are rescinded anyway. Will need more detail to comment further.

 

PT

[albertjohn]

Hi and thanks

 

"...If you win your application then all the HCEO fees are rescinded anyway..." makes sense...

 

So, if I prove to the court that I owe x and pay x does "..all the HCEO fees are rescinded anyway.." mean even the fees they can justify are rescinded?

 

There is probably going to be a dispute around exactly what is due and what is not which I appreciate you don't have details of but I am just trying to understand the principles.

(a) Should I simply focus on the disputed sum and try to demonstrate what is owed to diminish or rescind fees and (b) Does paying by instalments affect the rescinding of the HCEO fees?

[ploddertom]

The Set Aside Hearing only deals with your debt and not the involvement per se of the HCEO. It will basically boil down to this - do you owe, if so how much & how are you going to pay, otherwise you are replacing one CCJ for another so are no further forward. Don't forget all commercial debts are Forthwith Judgments. Did you initially receive all the Court docs or was the first you knew about this was when the HCEO turned up. Has the Claimant tried to claim £10k when in fact you only owed £1 for example. The more you can prove they are wrong the better. Did they try to ask nicely for their cash or just bulldoze ahead with litigation.

 

PT

[albertjohn]

really appreciate your input ...I have answered your questions below and have a couple of remaining queries..

 

Q Did you initially receive all the Court docs or was the first you knew about this was when the HCEO turned up?... The first knowledge was the HCEO, so a bit of a shock! My instinct told me that must be able to do something but anyone reading this who doesn't know should appreciate the HCEO can and will mislead you, they really are only interested in maximising the fees!

Q: Has the Claimant tried to claim £10k when in fact you only owed £1 for example?.... Yes, exactly - c 22k being claimed only perhaps £8k owed net. This may be partially due to them taking action in another country though the amount being claimed still looks far too high based upon everything at this end.

Q: Did they try to ask nicely for their cash or just bulldoze ahead with litigation?.... They started nicely then when we disagreed stopped communicating. made some sensible attempts to resolve amicably but they decided to ignore these.

 

Can you elaborate slightly on "...otherwise you are replacing one CCJ for another so are no further forward. Don't forget all commercial debts are Forthwith Judgments..."

 

Not sure if I understand exactly what you are saying - do you mean even if we agree an amount or I can prove a different (much lower) amount that the claimant effectively has judgement for a different amount without going through the whole process, which would still be payable immediately?

 

If this is the case do I not need to be properly prepared for the HCEO charges? The court officers mentioned 'interpleading' (which I am unsure of the true meaning of) and they also talked about 'asking for more time' (not advice of course just general chat as I was there most of the day) but of course the court staff fixed the date with me on the day when I was granted the set aside. But I am now struggling to get all the background docs together in the interim and though I have sent copies of the order I got to the claimants I have heard nothing from them (so far).... I suppose they are leaving the HCEO to do the litigation now!

 

Apologies for probably very dumb questions but I simply have no comprehension of the process and so Thursday looms large!

 

Many thanks

[ploddertom]

really appreciate your input ...I have answered your questions below and have a couple of remaining queries..

 

Q Did you initially receive all the Court docs or was the first you knew about this was when the HCEO turned up?... The first knowledge was the HCEO, so a bit of a shock! My instinct told me that must be able to do something but anyone reading this who doesn't know should appreciate the HCEO can and will mislead you, they really are only interested in maximising the fees! Not having had the opportunity to defend/counterclaim/make offer of payment is in itself sufficient grounds to apply for Set Aside. May be worth finding out from the Court what the original Particulars of Claim were and most importantly what address everything went to.

Q: Has the Claimant tried to claim £10k when in fact you only owed £1 for example?.... Yes, exactly - c 22k being claimed only perhaps £8k owed net. This may be partially due to them taking action in another country though the amount being claimed still looks far too high based upon everything at this end. They will need to be able to justify the amount. Conversely you will need to provide details of what your figures are.

Q: Did they try to ask nicely for their cash or just bulldoze ahead with litigation?.... They started nicely then when we disagreed stopped communicating. made some sensible attempts to resolve amicably but they decided to ignore these. Sounds typical

 

Can you elaborate slightly on "...otherwise you are replacing one CCJ for another so are no further forward. Don't forget all commercial debts are Forthwith Judgments..."

 

Not sure if I understand exactly what you are saying - do you mean even if we agree an amount or I can prove a different (much lower) amount that the claimant effectively has judgement for a different amount without going through the whole process, which would still be payable immediately?

 

You already have a Judgment registered against you which for whatever reason you are asking the judge to set aside ie the process then goes back to the beginning as if the initial papers had been served. However if the result is that if you do owe and cannot pay then the Judge is only replacing one CCJ for another so putting you back into the same position. If for arguments sake you can afford to pay the sum you think you owe then offer to do so.

 

The process so far has been the Claimant has issued papers against you, as you never received you never acknowledged and subsequently the Claimant was awarded Judgment by Default. Again not knowing anything you never paid and the Claimant instructed the HCEO to enforce the Judgment. His arrival being the first you knew of anything amiss. This is very common.

 

If this is the case do I not need to be properly prepared for the HCEO charges? The court officers mentioned 'interpleading' - Interpleader is when some of your goods have been seized but you claim they are owned by a 3rd Party but cannot provide the proof at the time. You only have a short time to provide this and submit to the HCEO who then passes it to the Creditor who either admits or denies the claim. If it is admitted then the goods are released from seizure otherwise they institute Interpleader in front of a Master usually at the High Court in London - (which I am unsure of the true meaning of) and they also talked about 'asking for more time' (not advice of course just general chat as I was there most of the day) but of course the court staff fixed the date with me on the day when I was granted the set aside. But I am now struggling to get all the background docs together in the interim and though I have sent copies of the order I got to the claimants I have heard nothing from them (so far).... I suppose they are leaving the HCEO to do the litigation now! On the day of the hearing their will only be yourself & the Claimant present the HCEO takes no part in the Set Aside.

 

Apologies for probably very dumb questions but I simply have no comprehension of the process and so Thursday looms large!

 

Many thanks

 

Have you asked for a breakdown of the fees from the HCEO? Did he leave you Form No 55? Did he leave a Notice of Seizure?

 

PT

[albertjohn]

Yes he left a yellow Notice of Seizur, but not a Form 55.. Is this significant technically or otherwise?

 

I have asked for and received a breakdown of the charges, but I am struggling to know exactly what is and what is not acceptable.

 

Some of the goods are indeed owned by a third party interest, proof of which has been provided to the HCEO and they confirm that they have passed this proof to the claimant.

(I presume that because I had mentioned this to the Court they mentioned an 'Interpleader).

 

Would you send this proof directly to the Claimant as well - I presume the creditor you mention is the 'third party interest'?

I believe that the HCEO have already accepted the ownership issue though they haven't sent anything to the third party, as the documentation is a formal agreement, so quite strong.

 

So basically, if I define on Thursday what I believe to be due and offer to pay it in a reasonable time, that should be the basis of what the Judge takes a view upon, allowing for anything the Claimant sends/issues/directs?

 

Also I presume I should send anything I intend use on the day to the claimant ahead and not in fact concern myself at this stage with copying the HCEO?

 

regards

 

[TweedleDee]

As this is a foreign judgment being registered, the set aside application will look into whether the judgment should be registered or not.

 

You should have also received notice of registration with details about the judgment and your right to have it set aside as well as the time limit for doing so.

 

Reasons for restricting the registration of a foreign judgment are:

 

- the foreign court acted without jurisdiction.

- you neither carry on business nor ordinarily resident within the jurisdiction of the court by which the judgment was given, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court.

- you were not duly served with the process of the foreign court and did not appear at the foreign court, notwithstanding that you were resident or carrying on business in the jurdisdiction of that court or agreed to submit to its jurisdiction.

- the judgment was obtained by fraud.

- that you satisfy the court that an appeal is pending or that you are entitled and intend to appeal against the judgment.

- the cause of action is contrary for reasons of public policy.

 

So it all depends on the finer details of your case which you are privy to.

 

Just food for thought.

[albertjohn]

Thanks very much Tweedle Dee

 

".. you were not duly served with the process of the foreign court and did not appear at the foreign court, notwithstanding that you were resident or carrying on business in the jurisdiction of that court or agreed to submit to its jurisdiction." would seem to have a bearing.

 

Also have today received a document looks like it has been sent to the court by a lawyer referring to a Notice of Acting which we don't and it says that 'Supreme Court Rule sc47.1 requires the Application Notice and supporting witness statement to be served on the respondent 4 clear days before the hearing'.. is this correct??

 

Have sent the original order and enclosures to the claimant and more recently the supporting documentation showing the amount we believe may be due, by registered post so I assume we are within the Supreme Court rules because as it is Europe I can't guarantee they received it in good time?

 

Also is there a particular format for the evidence to be supplied in, as in any wording that should be used or a covering document?

[TweedleDee]

When they refer to the official sounding supreme court rules, blah blah blah, what they are referring to is the court rules CPR which dictate the behaviour of the court and litigants at every stage.

 

Here is a link for the rules they are quoting:

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/schedule1/rscorder47.htm

 

Now I am a little bit confused... in the initial post you mentioned that you have the execution stayed and set aside pending a hearing which I assumed was the set aside of the registration of the judgment and then we have the letter from the solicitors stating that you need to serve them with information for the staying of execution hearing?

 

I guess what you have is the hearing to stay the execution and not the hearing for the set aside of the registration. They are right that they need 4 days minimum and you will have to send it to the solicitors representing them and not the claimant so you can use that as an excuse as the solicitors did not notify you of their representation until today so you sent it abroad to the claimants.

 

I am assuming that you already filed an N244 with what you would like the court to do and why as well as a witness statement for the stay. That you need to send to them as well.

 

If no witness statement, you will need one verified with a statement of truth. Look around here for formats on how it should look like but look at the content below of what it should contain. Amend to suit.

 

You mentioned the third point in the list as reason why the execution must be stayed and the judgment not registered. Therefore you do submit to the jurisdiction of the foreign court (still have no idea where it is) and that you were not served.

 

In that case do research on how they should have served you and mention how they should have served you but they didn't; how you should have got notice of the foreign judgment being registered but you didn't get it either, etc. Say that you dispute the amounts owed and that if given the chance to represent yourself at the foreign court, you would have.

 

File it at court unless you already have a witness statement filed there.

 

 

Witness Statement

 

I, Albert John, of 1, CAG Road, CAG, CA6 6AG, the above-named Defendant in this claim wish to rely on the following evidence in support of my application for an order that execution be stayed.

 

1. On an unknown date, the Claimant entered judgment in this claim against me for an unknown amount and unknown costs in default of acknowledgment of service or defence at the foreign court.

 

2. Further details about the foreign judgment such as a date for payment of the judgment debt are unknown.

 

3. The grounds of my application are that there are special circumstances which make it inexpedient to enforce the judgment at this time for the following reasons:

 

3.1 I was not served with the particulars of claim as per the foreign court's rules of service.

3.2 The Claimant knew where I resided at all times as we were in constant dialog over this dispute and therefore would have had all the addresses to serve me, either here or abroad.

3.3 It is assumed that the Claimant purposefully used my foreign address to serve the particulars of claim despite the fact that at the time, he was aware of my residence in the United Kingdom and I did not receive service of any foreign court documents in the United Kingdom.

3.4 At no point did the Claimant advise that he was undertaking court proceedings or that judgment was granted in default in the foreign court during our dialog about this dispute.

3.5 I was also not served with the notice of registration of the foreign judgment to allow representations to be made regarding this judgment.

3.6 The amount claimed in the writ is not an accurate figure of the amount in dispute, and is in fact an increase of the original figure by a factor of approximately 3.

3.7 I shall and hereby undertake that I will within the next 24 hours file an application notice for an order to set aside the said registration.

 

Statement of truth

 

I believe that the facts stated in this witness statement are true.

 

Full name ……… (Signature)

 

Ps. Sorry about the formatting, I tried for 20 minutes to get it looking right but it is still awry!

 

I am also aware that this post jumps pillar to post (pun points = 10) but I am dumping my thoughts as I go along so re-read it a few times if necessary.

 

Good luck.

[albertjohn]

Brilliant and thanks very much for all your help.

Yes it is a hearing of the application sorry I am not too hit on the legal terminology but I now understand the difference.

 

If you get time could you comment on the need to make an offer of any undisputed balance and what is reasonable in terms of paying it. Certainly there is a balance due which we now have specific net details of so do we make an offer to pay that in x days or by x date and so if we don't pay it immediately can they enforce the amount undisputed and revisit the HCEO process with all the fees or do they in effect have to start again?

Also is there a particular format for querying the fees and charges and should I just in fact be focused on proving that the judgement was unknown and inaccurate and this in itself if upheld will reduce or remove any fees?

 

Finally should we agree to pay interest on any net balance as part of a settlement as a gesture? We could do with a little time to gather the monies together but I am assuming we are exposed unless we clear it very quickly.

 

Thanks again for all the help from the Forum and I will put together the docs as advised and do the best I can.

[TweedleDee]

The English court won't revisit the amount due, that is the remit of the foreign court. It is only concerned with the claim being lawful which in your case it is not, so I would save this argument for the foreign court.

 

If you want to make an offer, you may do so however note that there are normally two types of applications for stay of enforcement. One is to stay the enforcement due to the claim still ongoing such as an appeal, etc., whilst the second type is to ask for an instalment plan. The instalment plan will be based on the 22K so in my humble opinion it is not wise to make an offer at this stage but it is up to you.

 

You should just concentrate on the hearing and disregard the fees for the HCEO. You may ask the Judge for each party to bear their own costs (including the hearing) as due process was not followed (service of documents, letters before action, notification of judgment) and thus why should you be penalised for them steaming through to litigation with out you being aware of what is going on.

 

This is where it gets complicated with interest, it all depends on the initial contract and the foreign judgment but I can't give you a definitive answer right now due to work constraints so I wouldn't mention it at all. Let them make their argument for that.

 

The point to remember is that you did not get served despite the claimant knowing where you are so research the modes of service for this foreign court and make sure you can backup everything in your witness statement either via emails, letters or telephone records. Make sure you have a copy of this evidence with you in court.

 

Good luck buddy.

[albertjohn]

thanks again and I will let you known how it goes..

[albertjohn]

Any comments on this to further my understanding would be really welcome as still (just) have time to negotiate a deal

 

Interestingly they this evening made an offer via posh London lawyers per Section 1 of Part 36 of the CPR which is without prejudice save as to costs.

The settlement sum net is effectively approximately what we think is owed + the sheriff's costs + interest.

Would it now be best to make a counter offer without the execution costs and perhaps with an element of interest (as they have had the money outstanding)?

I realise the CPR rules mean if they do better the costs could be all to our account but how does a counter offer affect any cost award?

We have a registered letter from them from last year which states an amount due which is far less than the amount that they say they have the judgement for!

However with the interest and the sheriff's costs added, the amount in the registered letter comes to more than the amount they are asking for in full and final settlement?

I do also appreciate it is a commercial call what to do next but I suspect better to try to settle and get the judgement set aside by agreement?

Is it reasonable to ask for a short time to pay as part of agreeing a final amount in full and final settlement and if so what is usually sensible in terms of time scale to pay?

My main objective is to remit a fair sum even including interest but to avoid paying excessive fees as we have been treated unfairly and not properly negotiated with and we have documented evidence of this.

I particularly object to paying fees for a HCEO for turning up and levying against goods that belonged to a third party anyway, which we can prove.

 

Any comments on this to further my understanding would be really welcome as still (just) have time to negotiate a deal.

[TweedleDee]

Under CPR 36.10, the claimant will be entitled to the costs of the proceedings up to the date on which notice of acceptance was served on the offeror. Therefore you will have to stump up all costs as it is standard costs and if you disagree, then it will go for a costs hearing however CPR 44.3 is not applicable as the judge has no discretion as to the proportion of costs to award, thus it is 100% of costs to claimant when it is calculated.

 

You also have to pay within 14 days unless you agree a different time scale as the claimant may seek judgment on the agreed amount as per CPR 36.11. If you don't pay within the agreed time scale, they can also seek judgment under the same rule. You can ask for what ever time scale you feel would give you enough time to pay.

 

You may lodge a counter offer and see what they say. You don't have to use a formal part 36 offer but something called a Calderbank letter which is an unofficial version of a part 36 offer but without the stringent requirements. For you (defendant), the cost consequences are similar to the part 36 offer due to CPR 44.3.

 

I can't comment on this letter and offer any thoughts on it but I assume that the offer period has expired.

 

Why the change of heart on their part? What did you do?

[albertjohn]

[i]Why the change of heart on their part? What did you do? .. Just advised them today that we have evidence to reduce the amount being stated + I guess they want it settled soonest now!

Not sure I completely understand the CPR costs issues...

if you disagree, then it will go for a costs hearing however CPR 44.3 is not applicable as the judge has no discretion as to the proportion of costs to award, thus it is 100% of costs to claimant when it is calculated. #

Does this mean that whatever happens they are entitled to all costs including the HCEO costs which I thought we could query and although the interest being claimed is on the wrong sum?

 

I may use that Calderbank process thanks but does "...the cost consequences are similar to the part 36 offer due to CPR 44.3." mean that unless they accept a 'deal' again the costs are all inevitable?

[TweedleDee]

You can be assigned proportions of costs therefore, 60% for the claimant, etc.

 

It just means that the proportion of costs will be 100% however the standard costs can still be scrutinised. So if the costs before scrutiny is £3K, and the costs judge awards £2K, then they get £2K.

 

For the second point regarding CPR 44.3, it means they are at risk of an adverse costs order against you.

[Ganymede]

Making the Pt 36 offer now is a tactical move as they know it puts you at risk of paying their costs should you reject it and they go on to get the same amount of their offer or more...

[albertjohn]

So good news...

 

We settled - I would call it won - on the court steps so to speak :boxing:

 

It was at a figure which was basically what we thought was due + some interest which we had no problem paying. The claimants solicitor maintained that the claimant would have the HCEO fees in full but I said they wouldn't - the web site of the HCEO says what they charge for unsuccessful visits and it is peanuts so after more rows and calls to Europe that was reduced to next to nothing

 

The consent order has given us nine months to pay with no further costs to be added:smile: yep that's right : 9 months interest free.

 

It would have been much better for them if they had just communicated with us then the legal fees of (their lawyer says almost 5k) would not have effectively reduced the sum they get to less than they are actually legitimately owed. Thye seemed to be looking for a row or were badly advised or both :

 

Clearly they don't have a fantastic CAG forum in the European Country where they come from that they can use and get support and help from!

 

I have to say when the HCEO first showed up (before I had done any research which I did effectively whilst he waited) I really thought we had a HUGE issue. Then going to Court with all these very well educated legal types can be daunting but only if you let it. I am sure it is as much luck as judgement but I did do a lot of research and the guidance given here was just fantastic:thumb:

 

My remaining query is if we can affect the judgement itself as they said it will show up after a month and I am concerned about the creditworthiness effect. Is there anything we can do about that? The consent order is not yet signed we just agreed today to abort the legal process (that's not the right word but that's apparently what it meant).

[TweedleDee]

My remaining query is if we can affect the judgement itself as they said it will show up after a month and I am concerned about the creditworthiness effect. Is there anything we can do about that? The consent order is not yet signed we just agreed today to abort the legal process (that's not the right word but that's apparently what it meant).

 

That is something you should have negotiated with them as part of the TO, thus they would not contest the set aside of the registration as long as you signed the TO.

 

A way to put it across would have been that if I sign the TO and I don't keep up with my repayments, you can seek judgment/registration automatically with great difficulty to myself so you would not have lost anything as the TO would have safeguarded your judgment/registration.

 

Now it would be a tad bit late but you can always ask as nothing ventured, nothing gained.

 

Glad to hear it went well. Stay out of trouble.

[albertjohn]

As you know this is all but agreed except that we now have a contention. The draft order was issued (I can send you the wording of you need it) and then a Note of Order issued (again i have it if you need it) and the note of order said that as the court had been notified that a settlement was reached although it had no details of the terms it understood that subject to compliance with those terms the writ of fi fa will not be pursued therefore it was ordered that the application be dismissed and no order as to costs.

Now almost a week later the timings of the payments being requested in the consent order are different to my understanding in that they specify the first day of the month and our communication with them specifies by the end of the month. We have queried this and the lawyers have said take it or leave it or they will pursue the original matter. Nice eh!

Anyway my question is that if we call there bluff what would happen in that we have documented evidence ahead of the hearing which states our position and it is inconsistent with the draft consent order. Please advise what process would take place now if they throw the teddies out over effectively an additional 29 days overall before the full amount is discharged!

I know they can carry on but before another hearing would I have to make another application to stay the thing again or?

really appreciate some guidance as I have to revert this week having made the first payment ahead of our understanding of when it was due just to show goodwill.

 

regards

[Ganymede]

Hi,

 

Did both parties sign the Consent Order? Usually the Court will just seal that.

 

Is this a typo on behalf of the Court maybe?

[albertjohn]

No the consent order was not signed on the day and that's why the court had no visibility of it. It is the draft of it now that we are disputing as the email we sent to the other side was not disputed but clearly does not say a specific payment date each month. To be fair they mentioned verbally the 1st of each month but we didn't agree to that or sign anything to suggest we have. All we agreed was to clear the amount in fixed payments over the time period agreed (in months).

[Ganymede]

Ah ok.

 

Personally I would comply with the Court Order and make the payments when it says. Safer for you that way.