Problem with serving Order to attend Court for questioning

[howardhewit]

Dear All,

 

I was wondering if you could kindly provide some advice in relation to the following problem:

 

I need to enforce a Judgement against a person (debtor). In order to do this I have decided to apply for Order to attend the Court for questioning (N39), so that I have all the necessary details to enforce the Judgement. Also, I have asked for Court bailiffs to personally serve the N39.

 

I presume that bailiffs will only make one attempt to serve N39. If this is the case, can I ask for bailiffs to attempt to serve N39 once again or do I have to pay another £100 for this?

 

Also, should the bailiffs be unsuccessful in serving N39, is it possible to ask the Court to serve N39 outside CPR? In other words, using alternative methods of service? In addition, are there any pre-requisitions needed (e.g. you must make so many attempts to personally serve N39) before I can ask the Court to allow me to do this?

 

Finally, I understand that personal service is considered valid where N39 has physically touched the debtor. Could somebody please confirm this.

 

Thank you

[AndyOrch]

Hi Howard and welcome to Cag

 

An N316 is the form that a creditor uses to ask for an 'Information Order'

 

The N39 is the one served on the debtor to order him/her to attend for questioning.

 

You fill out an EX140 at court and sign to say this is true on that date.

 

There is little information about this process on the web. It gets a mention in this ND fact sheet, which is worth reading. This also points to the orders that you the creditor will be considering:

 

bailiffs - if you have assets

attachment of earnings - if you earn

charging order - if you own property

3rd party debt order (old garnishee order) - if you have money in the bank

 

On the last one, there's nothing to stop you changing your bank the day after the information order.

 

Regards

 

Andy

[consumeredge]

Hi Howard

 

The last post is utter rubbish.

 

andyorch has copied and pasted then ommited parts from Martin Lewis's Money SavingExpert.com Fatbelly's reply dated the 19/01/2009 (post 4) to Clarius99's thread "N39 and summons to appear in court"

The question Clarius99 asked was what to do next now having been served/received a N39 through the post yet denied recieving form N316 as the claiment alleged.

 

Fatbelly's full unedited post is as follows:

 

An N316 is the form that a creditor uses to ask for an'Information Order'

 

The N39 is the one served on the debtor to order him/her to attend for questioning.

 

Just getting this straight in my mind

 

You fill out an EX140 at court and sign to say this is true on that date.

 

You're right - there is little information about this process on the web. It gets a mention in this ND factsheet, which is worth reading. This also points to the orders that the creditor will be considering:

 

bailiffs - if you have assets

attachemnt of earnings - if you earn

charging order - if you own property

3rd party debt order (old garnishee order) - if you have money in the bank

 

On the last one, there's nothing to stop you changing your bank the day after the information order. That's what I'd do!

 

I hope that clears up any confusion you might have experinced, if you requested the court send the Defendant form N316, I would suggest first, you call the court and ask them has the form been returned completed.

[Ganymede]

Do you know nothing of the Defendant's circumstances akready? Why don't you just instruct HCEO or apply for a Charging Order straight away?

 

Seems a waste of time to order the Defendant to attend Court for questioning.

[howardhewit]

Thank you for your prompt replies and very useful information andyorch, consumeredge and ganymede.

 

I do apologise, I meant to state that I did apply for Order using N316 and now I am having difficulties with serving N39 personally to the debtor.

 

The debtor might be renting or leasing property, therefore it could be difficult to apply for charging Order.

 

It will be interesting to know if anyone was successful in serving N39 outside CPR.

[AndyOrch]

Hi Howard

 

The last post is utter rubbish.

 

andyorch has copied and pasted then ommited parts from Martin Lewis's Money SavingExpert.com Fatbelly's reply dated the 19/01/2009 (post 4) to Clarius99's thread "N39 and summons to appear in court"

The question Clarius99 asked was what to do next now having been served/received a N39 through the post yet denied recieving form N316 as the claiment alleged.

 

 

 

 

I hope that clears up any confusion you might have experinced, if you requested the court send the Defendant form N316, I would suggest first, you call the court and ask them has the form been returned completed.

 

 

And ???????? your point ????? or just a personal attack? I copy and post from a plethora of sites saves me retyping it:roll:

[consumeredge]

If after repeated attempts you cannot serve the N39 upon the Defendant and you have reason to believe he is avoiding service you can ask the Court to allow you to serve it by post, however the Court will only do this where it is satisfied that it will come to his attention and that he is evading personal service.

[AndyOrch]

If after repeated attempts you cannot serve the N39 upon the Defendant and you have reason to believe he is avoiding service you can ask the Court to allow you to serve it by post, however the Court will only do this where it is satisfied that it will come to his attention and that he is evading personal service.

 

 

Excellent

[consumeredge]

My point is this:

 

The OP asked a straight forward question.

 

It will cost £100 for a bailif to serve a N39, if this is unsuccesful can he then ask for the bailif to serve again or will this cost another £100?

 

If the bailif is unsuccesful can he ask the court if there is another way to serve the N39?

 

And finally is an N39 (summons) deemed as served merely by touching the defendant with the N39?

 

It would be reasonable to assume on reading the post this morning you immediately Googled N39, when you view the screen (as I did) "N39 and Summons to appear in court" is the 2nd one down

 

In editing copying and posting as you did, you wrongly infer the OP has to fill out an EX140 at court and sign to say this is true on that date.

 

EX140 is for the Defendant to sign not the Claimant.

 

You then posted " On the last one, there's nothing to stop you changing your bank the day after the information order" omitting Fatbelly's "Thats what I would do"

 

That is jibberish for the OP because it was specifically said for Claius 99 (A Defendant)

 

You completely missed what the OP was asking.

 

You then changed

 

"You're right - there is little information about this process on the web. It gets a mention in this ND factsheet, which is worth reading. This also points to the orders that the creditor will be considering:"

 

to

 

"You're right - there is little information about this process on the web. It gets a mention in this ND factsheet, which is worth reading. This also points to the orders that YOU the creditor will be considering:"

 

Many guests read this forum, it would not surprise me if one of them was in a similar position to Howard's, on the strenght of your "reputation" and what you posted, an innocent OP, or guest, could have gone to their local court on Monday and asked for an EX140 form to sign, the court staff knowing what a EX140 form is, could prejudice against the OP or guest by believing they were the Debtor and cause them embarrasment.

 

You copied and hashed a reply that had no relevance to the question being asked.

 

You seem to believe no one will question your posts, do you still stand by post 2 as the complete answer to the OP original questions?

[howardhewit]

Thank you consumeredge for your previous post - that is exactly what I wanted to ask the knowledgeable people of CAG.

 

If after repeated attempts you cannot serve the N39 upon the Defendant and you have reason to believe he is avoiding service you can ask the Court to allow you to serve it by post, however the Court will only do this where it is satisfied that it will come to his attention and that he is evading personal service.

 

I was wondering how many repeated attempts would constitute the Defendant avoiding service. Possibly, if bailiffs are unable to serve N39, followed by me being unable to serve N39 - this would count as Defendant being evasive. What do you think?

[TweedleDee]

To plagiarise consumeredge's succint questions:

 

It will cost £100 for a bailif to serve a N39, if this is unsuccesful can he then ask for the bailif to serve again or will this cost another £100?

You will have to fill in form N446 for a re-issue. I can't recall if there is a cost or not as bailiffs are the worst ones to serve hence the use of "tracers" or private investigators in this field to effect service first time. Sorry for not knowing if it is free or there is a cost. You may call the court on Monday to ask them.

 

Once you fill that in, they will re-issue the order and set a new date for the hearing.

 

If the bailif is unsuccesful can he ask the court if there is another way to serve the N39?

 

Yes as per CPR PD 6A para 9.1 but it has to be done at LEAST 7 days BEFORE the hearing and with an application (N244 - cost associated). In addition, prison time is highly unlikely if they don't turn up as it wasn't personal service.

 

And finally is an N39 (summons) deemed as served merely by touching the defendant with the N39?

 

Good question! According to CPR, "a document may be served personally as if the document were a claim form in accordance with rule 6.5(3).".

 

Going back to look at 6.5(3) says:

 

"(3) A claim form is served personally on –

 

(a) an individual by leaving it with that individual;"

 

So in my opinion, a touch is not leaving it with that individual as they have to either have it in their pocket or hand, etc. I have to add that I have not come across any case law for or against "touch".

 

Don't forget you have to file affidavit evidence (EX550) on how it got served.

 

Regarding howardhewit's latest question, about how many attempts. You could two or three after which you can file an application for alternate service. Seeing that the point is having the judgment debtor turn up for questioning, there is no point in filing for an alternative service which they won't turn up for as the court will be highly unlikely to effect a commit order. So it is best to serve personally, and then the court can effect a commit order.

 

HTH.

[Ganymede]

You could carry out a Land Registry search on his house to see if he owns it. Will only cost £8.

 

You would need to make an application to Court for an Order to allow for substituted as far as I am aware. That is assuming it follows the same principles as serving a stat demand etc.

[howardhewit]

That is very useful information TweedleDee - thank you for your post.

 

the use of "tracers" or private investigators in this field to effect service first time

 

Is it correct to think that I shall have to carry the cost of such tracers or private investigators and any costs associated with this can not be recovered from the other side?

 

Yes as per CPR PD 6A para 9.1 but it has to be done at LEAST 7 days BEFORE the hearing and with an application (N244 - cost associated). In addition, prison time is highly unlikely if they don't turn up as it wasn't personal service.

 

Finally, the costs associated with N244 - could they be added to the total Judgement amount?

 

Thank you

[howardhewit]

You could carry out a Land Registry search on his house to see if he owns it. Will only cost £8.

 

According to Land Registry, the house is owned by somebody else.

[TweedleDee]

You are going in to a complex area of law believe it or not. Costs have their own specialist barristers and solicitors.

 

Is it correct to think that I shall have to carry the cost of such tracers or private investigators and any costs associated with this can not be recovered from the other side?

 

Normally, for costs of unsuccessful execution or enforcement, an application notice must be filed if the order was silent about costs (CPR 44.13(1)(a)). Again, it must be backed up by a witness statement. You may be able to recover those fees but only if the court does not believe them to have been unreasonably incurred.

 

 

Finally, the costs associated with N244 - could they be added to the total Judgement amount?

 

Yes if you mention that you want to recover those costs.

Edited November 12, 2011 by TweedleDee
Typo in CPR rule amended in bold

[howardhewit]

That is a great reply TweedleDee - thank you very much for your input.

 

Normally, for costs of unsuccessful execution or enforcement, an application notice must be filed if the order was silent about costs (CPR 44.13(1)(a)). Again, it must be backed up by a witness statement. You may be able to recover those fees but only if the court does not believe them to have been unreasonably incurred.

 

Would 44.13(1)(a) still apply if I manage to successfully serve the debtor personally using a private investigator for example?

 

You are going in to a complex area of law believe it or not. Costs have their own specialist barristers and solicitors.

 

This must be the reason, why the literature on this topic is so limited.

 

This is an interesting article, which shows that persistence is the key (UK lawyer serves papers using Facebook): access-legal.co.uk/legal-news/papers-served-Facebook-lu-3384.htm

 

I guess winning the case could be considered the easy part in some circumstances, making the loosing side pay is a different matter...

[TweedleDee]

Now you are stretching the limits of my knowledge on costs.

 

They would apply BUT there is no guidance on what costs would be included.

 

The problem is that order for questioning is not enforcement but a view to enforcement thus as long as it is not unreasonable or extortionate, then it should be recoverable.

[howardhewit]

Thank you for your help.

I shall follow your advice and let you know how it all works out.