Enforcing money judgment 

Obtaining a money judgment does not automatically bring the matter to a close. In many cases the judgment creditor would have to take enforcement steps against the debtor in order to realise funds to satisfy the money judgment. To enforce a money judgment, the debtor must have failed to pay the judgment when it fell due or failed to pay an instalment due under the terms of the judgment.  

There is no strict time limit for a creditor to enforce a judgment entered by English courts. However, the courts will not look kindly on a judgment creditor that delays enforcing the judgment. The creditor may also lose interests that accrued during those periods.

A judgment creditor must obtain permission from the courts to issue a writ of execution on any judgment that is more than six years old.

There are various methods of enforcement open to a judgment creditor. The method of choice will depend on such facts as the amount of monies owed and the assets owned by the judgment debtor. 

Although most judgment creditors use one enforcement method at a time, it is in fact possible for a creditor to use more than one method of enforcement simultaneously. However, a judgment creditor must avoid recovering twice for the same judgment debt.

We now look briefly at six enforcement methods.

 

Writ and warrant of control 

A writ or warrant of control instructs a High Court enforcement officer or a County Court bailiff to seize and sell at auction goods belonging to the debtor. The purpose of this enforcement method is to raise enough funds from the sale of the debtor’s goods in order to satisfy the money judgment.

The maximum amount that the judgment creditor can ask a County Court bailiff to try to get back is £5,000. If you want the enforcement officer to try to get back more than £5,000 then you may transfer your judgment to the High Court and ask the High Court enforcement officer to enforce the judgment. The £5,000 limit in the County Court does not apply to judgment obtained under an agreement regulated by the Consumer Credit Act 1974. 

 

Insolvency proceedings 

This is the procedure by which the assets of a company or individual come under the control of a trustee in bankruptcy or a liquidator. A judgment creditor can apply to liquidate a company (compulsory liquidation) if the judgment debt is more than £750 and the creditor can prove that the company cannot pay the debt. 

The threshold for bankruptcy is much higher. A creditor can only apply to make a debtor bankrupt if the debtor owes at least £5,000.

After an individual has been made bankrupt or a company has been liquidated, a trustee or liquidator will be appointed to realise the assets of the individual or company and to distribute money to creditors by order of priority. The trustee or liquidator has a duty to sell assets at the highest price possible in order to obtain enough money to satisfy the creditors.

After the trustee or liquidator has paid the expenses of the insolvency procedure the secured creditors will then be paid first before unsecured creditors are paid. 

Although insolvency proceedings are fairly common methods of enforcement, please note that an unsecured creditor is unlikely to recover the full amount of the judgment debt, if anything at all.

 

Attachment of earnings

This method of enforcement gives the court the power to order a judgment debtor’s employer to deduct a proportion of the debtor’s earnings and pay to the judgment creditor until the judgment debt is fully paid. Attachment of earnings is only available in the County Court, but judgments obtained in the High Court can be transferred to the County Court for the purpose of obtaining an attachment of earnings order.

 

Charging order

A charging order secures a judgment debt by imposing a charge over the debtor’s beneficial interest in land, securities or other types of assets. The charge can be recorded and prevents the judgment debtor from selling or disposing of the land without paying the judgment creditor. 

This method of enforcement does not realise funds for the creditor at the outset. However, the judgment creditor may later apply for an order of sale, compelling the debtor to sell the property. Alternatively, the creditor may wait until the debtor sells the property or other creditors obtain possession of the property.

Once the land or asset is sold, the judgment creditor is paid provided there is enough equity remaining after the prior creditors have been paid.

 

Third-party debt order 

The effect of a third party debt order is that monies owed to the judgment debtor by a third party is frozen, seized and paid to the judgment creditor. This method of enforcement is most effective where the debtor has a bank account with funds. 

 

Writ of sequestration 

When a person disobeys a court order and acts in contempt of court, the court may order the sequestrator to take control of the person’s property until he has complied with the court order. Although control of the property moves to the sequestrator, title to the property remains with the person in contempt. A writ of sequestration is a draconian step and is rarely used to enforce money judgment. 

 

A step by step guide to bankruptcy proceedings

Legal threshold  

You may apply to make someone bankrupt if you are owed at least £5,000. Although you can commence bankruptcy proceedings without engaging the services of lawyers, it is strongly advised that you seek prior legal advice as bankruptcy proceedings can be complicated. There are serious implications in making someone bankrupt and you want to be sure that you are following the correct procedure and requirements.

Statutory demand 

Once you have decided to make someone bankrupt, you should serve the person with a statutory demand. The statutory demand should be served by a process server who will then provide a statement as evidence to confirm service of the statutory demand. A statutory demand is a formal request for the debtor to pay the sums owed to the creditor. In response to the statutory demand, the debtor may either apply to the court to set aside the demand or pay the sums demanded. 

Check for other bankruptcy petitions 

Following the service of the statutory demand, you must carry out checks to find out if the debtor has had any bankruptcy petitions against them within the last 18 months. If you find an existing petition then you may support that petition rather than file a new petition. You may proceed with your petition if there are no existing petitions against the debtor.

Presenting the bankruptcy petition 

If the debtor does not pay the sums demanded or does not apply to set aside the statutory demand, you should proceed to the next step by presenting a bankruptcy petition in court. To present a bankruptcy petition you must file the petition with the relevant court. The relevant court will depend on the debtor’s address and whether you are submitting the petition online or in person.  

Serving the petition on the debtor 

After presenting your bankruptcy petition, you must then serve a copy of the same petition on the debtor. The petition must be personally given to the debtor. A process server should be hired to give the bankruptcy petition to the debtor. If the debtor evades service despite several attempts to give them the petition, then you must apply to the court where you presented the petition for permission to serve the debtor by alternative means. For example, you may seek permission from the court to post the petition to the debtor. The process server should then provide a statement as evidence to confirm when and how the petition was served on the debtor.

Court hearing 

After the petition has been presented the court will set a court date to hear the bankruptcy petition — both parties are expected to attend the hearing. At the hearing, the petitioner will be required to provide a statement confirming how much of the debt remains outstanding. The petitioner must also provide the judge with a list of creditors who intend to attend the bankruptcy hearing. 

At the bankruptcy hearing, the judge will hear evidence from the parties involved. Depending on the evidence before the judge, the judge could declare the debtor bankrupt at that same hearing or adjourn the matter to a later date. The judge may also dismiss the bankruptcy petition if the petitioner does not successfully prove their entitlement to make the debtor bankrupt.

 

 

This is an overview of the bankruptcy process — please contact us for specific advice. 

Prescribed information relating to tenancy deposits

There are several requirements that a landlord must comply with when dealing with a tenancy deposit. Section 213 of the Housing Act 2004 sets out the requirements relating to tenancy deposits. Pursuant to s.213, where a landlord receives a deposit in relation to a tenancy the landlord must comply with the requirements of an authorised scheme within 30 days of receiving the deposit. In order to comply with the provisions of s.213 the landlord must register the deposit with an authorised scheme and give the tenant and any relevant person certain information relating to (1) the authorised scheme, (2) the landlord’s compliance with the requirements of the scheme, and (3) the operation of the law relating to deposits. 

It is important to note that s.213 requires a landlord to comply with the requirements of the authorised scheme and give the tenant and relevant persons “prescribed information” within 30 days from the date on which the deposit is received by the landlord. The prescribed information must be given to the tenant and relevant persons in a prescribed form or a form that is substantially the same. 

In addition to the requirement to give the tenant and relevant persons the information in a prescribed form, the landlord is also required to include certain information in the prescribed form given to the tenant. 

The following points must be included in the information given to the tenant and relevant persons about the tenancy deposit:-

(i) the amount of the deposit paid and the address of the property to which the tenancy relates;

(ii) the name, address, telephone number, and any email address or fax number of the landlord;

(iii) the name, address, telephone number, and any email address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator to contact the tenant at the end of the tenancy;

(iv) the name, address, telephone number and any email address or fax number of any relevant person;

(v) a copy of the deposit certificate signed by the landlord. The landlord must give the tenant the opportunity to sign the certificate to confirm the accuracy of the information contained therein. 

(vi) the name, address, telephone number, email address and any fax number of the administrator of the authorised tenancy deposit scheme;

(vii) any information contained in a leaflet supplied to the landlord by the administrator of the scheme explains the operation of the tenancy deposit scheme;

(viii) the procedures that apply under the scheme by which the deposit or part of the deposit may be paid or repaid to the tenant at the end of the tenancy;

(ix) the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy;

(x) the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy;

(xi) the procedures that apply under the scheme where there is a dispute between the landlord and the tenant in relation to amount of the deposit to be paid or repaid to the tenant; and 

(xii) the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved.

Forfeiture of Commercial Lease

A lease for commercial premises is a contractual agreement between the lessor and lessee and is governed by Common Law. This is different to tenancy agreements for residential premises which are governed by the Housing Act 1988. A commercial lease will commonly have a start and an end date — the end date being the date when the lessee will be entitled to vacate the premises and the lessor entitled to take possession of a vacant property.

Break Clause 

It is indeed possible to end a lease before the actual end-date stated on the lease agreement, provided the parties inserted a break clause into the lease agreement. A break clause in the context of a lease is a stated date or period prior to the actual end-date when the lease may be terminated by either the lessee or the lessor without fear of a penalty. Where there is a break clause in the lease there will often be an agreed notice period where the party intending to break the lease will give notice to the other party of their intention. The length of the notice period required will be stated in the lease and will often range from two to six months’ notice.

Other grounds for terminating a lease

Not all lease agreements have a break clause. The lack of a break clause in a lease does not prevent a party from breaking the lease before the stated end date. A party may break the lease if the other party agrees to the termination of the lease. Subject to the terms of the lease, a tenant may assign the lease to a third party or sub-let parts or all of the property. Assignments and subletting often require the express consent of the landlord.

Although the right of a landlord to forfeit a lease is not automatic, most lease agreements contain the right to forfeit. The right to forfeit is usually dependent on the tenant breaching a fundamental term of the lease, such as failure to pay rent. Upon forfeiture, the lease ends on the date the forfeiture takes effect. The effect of forfeiture is that the lease is terminated and the parties’ rights and responsibilities under the lease cease. 

Procedure for forfeiting a lease

In order to forfeit a lease, the landlord is required to first give the tenant notice pursuant to section 146 of the Law of Property Act 1925. The notice must specify the nature of the breach complained of, whether the breach can be rectified, give the lessee a reasonable time to remedy the breach, and require the lessee to compensate the lessor for the breach. Although “reasonable time” is not defined under the Law of Property Act 1925, the length of time given to the lessee to remedy the breach will often depend on the nature of the breach. 

Where the breach is not remedied within a reasonable time, the lessor may forfeit the lease. The lessor may then exercise the right to peaceable re-entry or issue court proceedings to obtain a possession order against the lessee. The right to peaceable re-entry means that the lessor or an appointed agent re-enters the property when there is no one inside and change the locks to prevent the lessee from entering the premises. 

Securing possession of premises

To ensure peaceable re-entry, it is common practice to re-enter the property and change the locks outside business hours when no one is on the premises. Nonetheless, peaceable re-entry can be a complicated matter, especially if the lessee later applies to a court for relief. If the court grants that relief and permits the lessee to return to the premises, then the lessor will be in a very difficult position if the property has been re-let to a third-party. Further, there is no right to peaceable re-entry if the property is let as a dwelling.  Therefore, it is best practice to obtain a possession order from a court after serving a notice under section 146 and allowing reasonable time to elapse.

 

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For advice on commercial leases, please call us on 0203 488 3078 or email at ask@penerley.com 

Royal Mail fined for breaking competition law

The Royal Mail was recently fined a record £50m for breaking competition law. The fine was levied by OFCOM after the communications regulator concluded that Royal Mail stifled competition by increasing the price of its wholesale service for competitors who used their own workers for delivery in certain areas and only used the Royal Mail for delivering letters in some areas. OFCOM concluded that by increasing the wholesale prices, Royal Mail was in effect compelling its competitors to use the Royal Mail in delivering letters in all the areas the competitors covered and not just in parts. Read more

Brief Overview of TUPE Regulations

The Transfer of Undertakings (Protection of Employment) Regulations [TUPE] preserves employees’ working terms and conditions when a business or part of a business is transferred to a new employer. Under the provisions of TUPE the incoming business steps in and assumes the rights, responsibilities, liabilities and duties of the outgoing business. The employees of the outgoing business become employed by the incoming business on the same or similar employment terms and conditions. Any dismissal of an employee as a result of the transfer of undertaking is automatically unfair unless the dismissal was due to economic, technical or organisational reasons that required changes in the workforce.

TUPE provides important protection for employees because without TUPE protection employees could easily be dismissed whenever a business or undertaking is transferred to another employer. The TUPE regulations apply to businesses the UK. The head office of a business or its country of origin is irrelevant provided the part of the business transferring ownership (the outgoing business) is in the UK. Although public sector employees have similar protections under a code of practice, TUPE does not generally apply to transfer of undertakings from public sector to private sector.

TUPE applies to two main types of transfers:-

  1. Business transfers — Whether or not a business transfer has occurred is not always apparent. There is a transfer where the ownership or control of a business or part of a business moves from one enterprise to another. A relevant transfer under TUPE can take various forms, including a merger or an acquisition. 
  1. Service provision transfers — These relate to transfers where services are being outsourced, in sourced or assigned by a current employer to a contractor, but only with regards to employees that can be clearly identified as providing the service being transferred. Services that could be protected by TUPE include such services as office cleaning, security guards and workplace catering.

In determining whether there is a relevant transfer, the following criteria may be considered:

  • The type of business 
  • Whether there is a transfer of tangible assets 
  • Whether there is a transfer of customers 
  • Whether the majority of staff were transferred 
  • Whether there are similarities between the business activities of the incoming and outgoing businesses
  • The degree of any interruption to the business  

TUPE protection 

Not every worker is protected by TUPE. Only employees are protected — this includes employees employed immediately before the transfer or those who would have been employed if they had not been unfairly dismissed due to the transfer. Employees working abroad are also protected by TUPE if the business they work for has assets or employees in the UK. Any employee who objects to employment under the incoming employer will not be transferred and the transfer will serve as a termination of their contract. 

Duty to inform and consult 

TUPE requires employers to inform the trade union or the employee representatives of the impending transfer. The employer must provide information about the transfer and explain why the transfer is happening. The employer must also inform the representatives of the legal, economic and social implications of the transfer for the employees affected and the steps that both the incoming and outgoing employers will take in relation to the affected employees.

Employers with less than 10 employees may inform and consult directly with employees if there are no representatives in place. Employers with more than 10 employees must consult with the employee representatives. If there are no representatives then new ones must be elected through a fair and transparent process.  

The role of an incoming employer 

The new employer that steps into the shoes of the outgoing employer takes over the employment contracts of the employees, including the rights, duties and liabilities under those contracts. The incoming employer will also assume the rights and duties of any collective agreement in place prior to the transfer. The new employer becomes liable for any failures of the outgoing employer, including any breach of employment contract that occurred prior to the transfer of undertaking. 

Although the incoming employer cannot change the terms and conditions of an employee’s contract simply due to the transfer of undertaking, the incoming employer has the power to change those terms and conditions for economic, technical or organisational reasons that required changes in the workforce or workplace. Employers also have the power to dismiss employees for economic, technical or organisational reasons — the normal rules of dismissal still apply.

House of Fraser settles case with landlords

House of Fraser can now focus its efforts on rescuing its struggling business after the department store reached an out-of-court settlement with its landlords. House of Fraser would have had to defend the lawsuit in the Edinburgh Court of Session next week if it had not reached a deal with the group of landlords.

The legal challenge brought by the landlords relates to a company voluntary arrangement (CVA) which was approved by House of Fraser’s creditors in an effort to keep the department store in business, albeit, with 6,000 job losses and the closure of 31 of it 59 stores, including its flagship store on Oxford Street. 

The landlords brought the legal action arguing that the terms of the CVA prejudiced their interests and treated them unfairly. The deal between House of Fraser and the group of landlords was reached over the weekend, the terms of which are confidential. This settlement will no doubt allow House of Fraser to focus on securing investments to keep the business afloat.

Unfair Consumer Contract Terms

Consumer Rights Act 

The Consumer Rights Act 2015 is a very important piece of legislation that provides several levels of protection to consumers in the UK. The legislation came into force on 1st October 2015 and it consolidated consumer protection laws — it replaced the Sale of Goods Act 1979, Unfair Terms in Consumer Contracts Regulations 1999 and the Supply of Goods and Services Act 1982. The 2015 Act enhances and expands consumer protection that already existed under the Unfair Contract Terms Act 1977.

Consumer contracts 

The Consumer Rights Act deals extensively with the sale and supply of goods and services between traders and consumers. The sale of digital contents is also covered by the Act. The Consumer Rights Act applies to both written and oral contracts. This article focuses on unfair consumer contract terms as set out in Part Two of the Consumer Rights Act 2015. The primary purpose of this part of the legislation is to ensure that traders do not insert, into their consumer contracts, terms that are unfair in the eyes of the law. It is important to note that the Consumer Rights Act does not provide blanket protection to consumers. Although the law has provided an extensive (but non-exhaustive) list of terms that may be regarded as unfair, it is vitally important that you properly review any contract before agreeing to the terms because the law does not consider all disadvantageous contract terms as unfair. 

Meaning of unfairness 

Under the Consumer Rights Act, a consumer contract term is unfair if it causes significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer. Thus, if the term is “one-sided” in favour of the trader and to the detriment of the consumer then that term may be regarded as unfair under the Consumer Rights Act 2015. 

Having established that the Consumer Rights Act regards certain contract terms as unfair, the natural question that must follow is which contract terms are regarded by the law as unfair. Under the 2015 Act, there are two distinct types of unfair contract terms, contract terms that may be regarded as unfair and contract terms that must be regarded as unfair. 

Contract terms that must be regarded as unfair 

Any consumer contract term that places the burden of proof on the consumer with regards to compliance by a distance supplier or intermediary with an obligation under the Distance Marketing Directive must be regarded as unfair. Distance marketing relates to the sale of pensions, mortgages and other financial services products by email, telephone, fax, mail, or online. 

The law limits the types of consumer contract terms that must be regarded as unfair contract terms (only distance sale of financial products and services fall within this category). The vast majority of other consumer contract terms may be regarded as unfair, but they are by no means automatically unfair under the Consumer Rights Act. In fact, some contract terms will not be regarded as unfair regardless of how detrimental they may appear to the consumer if the detrimental terms relate to the fairness of the price payable under the contract in comparison to the goods or services supplied or if the term of the contract in question is transparent and prominent. 

Contract terms that may be regarded as unfair 

The following are some of the terms in a consumer contract that may be regarded as unfair if they relate to:

  1. Excluding or limiting the trader’s liability in the event of death or personal injury of the consumer as a result of the trader’s act or omission.
  1. A term which permits the trader to increase the price of goods and services without giving the consumer the right to cancel the contract if the final price is much higher than the price agreed when the contract was concluded.
  1. Requiring the consumer that breaches the contract to pay a disproportionately high sum in compensation.
  1. Irrevocably binding the consumer to terms of a contract if the consumer did not have a real opportunity of becoming acquainted with the terms before the conclusion of the contract.
  1. Permitting the trader to determine the characteristics of the subject matter of the contract after it has become binding on the consumer.
  1. Excluding or limiting the rights of a consumer in the event that the event of total or partial non-performance or inadequate performance of the contractual obligations by the trader.
  1. Permitting the trader to retain monies paid by the consumer where the consumer decides not to proceed with the contract without compensating the consumer if the trader cancelled the contract.
  1. A term that makes an agreement binding on a consumer where the provision of services by the trader under the agreement is subject to a condition that depends solely on the will of the trader for its realisation.
  1. Permitting the trader to transfer the trader’s rights and obligations under the contract where the transfer may reduce the guarantees for the consumer without the consumer’s agreement.
  1. A term requiring the consumer to fulfil all of the consumer’s obligations under the contract where the trader does not perform the trader’s obligation.

A more detailed list of consumer contract terms that may be regarded as unfair can be found here. The list is not exhaustive and other detrimental terms may also be regarded as unfair. 

Effects of unfair consumer contract terms 

Contract terms that are regarded as unfair will not be binding on the consumer. However, the remaining terms of the contract will remain binding insofar as they are practical.                         

Tenancy Deposits in Relation to Possession Proceedings

Pursuant to section 213 of the Housing Act 2004 any deposit paid to a landlord in connection with the tenancy must be dealt with in accordance with an authorised tenancy deposit scheme. 

Under the Housing Act 2004 landlords must protect the deposit received from tenants within 30 days from the date the deposit was received by the landlord. Simply protecting the deposit with an authorised scheme does not fully comply with the requirements set out in section 213 of the Housing Act 2004. In addition to protecting the deposit within 30 days of receipt, a landlord must also give the tenant certain information relating to the authorised scheme where the deposit is protected. The information about the authorised deposit scheme must confirm the landlord’s compliance with the requirements of the scheme.

The information the landlord gives to the tenant must also provide details about the operation of the authorised scheme and must be contained in the prescribed form or in a form ‘substantially’ similar to the prescribed form. Pursuant to section 213(6)(b) of the Housing Act 2004 the prescribed information that landlords must give to their tenants must be given to the tenant within 30 days from the date the deposit was received by the landlord. 

Thus, the Housing Act 2004 requires landlords to protect any deposit received from their tenants and then give their tenants prescribed information about the operation of the deposit scheme. Both requirements must be completed within 30 days of receiving the deposit from the tenant. 

Landlords who fail to comply with the requirements to protect as set out in section 213 of the Housing Act 2004 may be subject to legal proceedings. Where a court is satisfied that the landlord has not complied with the protection requirements, the court must order the person holding the deposit to return the deposit to the tenant. In addition to returning the deposit, the court must order the landlord to pay the tenant an amount of between one and three times the amount of the deposit as a penalty for failing to comply with the requirements to protect and give the tenant prescribed information within 30 days of receiving the deposit. 

Further, section 215(1A) of the Housing Act 2004 prevents a landlord from giving a section 21 notice to their tenant if the landlord has not complied with the deposit protection requirements. If a landlord wishes to give a tenant a section 21 notice but has failed to protect the deposit and give the prescribed information to the tenant within 30 days, then the landlord may either return the deposit or protect the deposit and give the prescribed information to the tenant prior to giving the tenant the section 21 notice. Nonetheless, the tenant is still entitled to pursue the landlord for a monetary award for failing to comply with the requirements to protect the deposit within the 30-day limit. 

If a landlord seeks possession of their property on the grounds of rent arrears but failed to comply with the requirements to protect the deposit, then the landlord may be subject to a counterclaim of up to three times the amount of deposit received. If the tenant is successful in their counterclaim, the monetary award to the tenant will be set off against the rent arrears claimed by the landlord. This is important because if the rent arrears are reduced below a certain level after the set off then the landlord may not be entitled to possession as a matter of law. 

 

 

Legal Tips from Top Business Lawyers

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