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Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
Has his application to set aside been heard yet please?
yes and it as been set aside in favour of the man I served the demand on
Thank you. May I ask the reasons the judge gave for set aside please?
From what you say the other party accepted he owed the debt. Is this correct?
the judge said I should have sued him in a court first and yes the other party accepted the debt in written admission and verbally in court we have had the court tapes transcribed
Thanks. Do you recall if you used form 6.1 or 6.2 to serve the statutory demand?
I used a 6.2 form for statutory demand it was served on the man by a process server every thing was done correctly
Thank you. Unfortunately I think this is where things have gone wrong. 6.2 is a statutory demand to demand a debt following a jusgement for that amount.
It is quite possible to serve a statutory demand on a person without a court order if there is evidence that a debt is owed, as is the case here if the third party admitted it but a different form is required.
If you do not have a court order ordering the amount be paid then the correct form to use is 6.1
This form allows you to serve a statutory demand on a third party for a debt that is payable where you have not previously sought a judgement. The recipient can apply to set this aside in the same way but the only grounds that a court has for doing so are as follows:
a. the debtor appears to have a counter claim, set-off or cross demand which equals or exceeds the amount specified in the statutory demand; or
b. the debt is disputed on grounds considered by the court to be substantial; or
c. it appears that the creditor holds some security which has not been disclosed in accordance with the rules or the court is satisfied that the value of the security is greater than or equal to the amount claimed; or
d. the court is satisfied on other grounds that the demand ought to be set aside.
Accordingly if the third party accepts the debt is owed there is no basis for him to set aside the statutory demand successfully regardless of the fact that you have not preivously sued him for which there is no need to do if using form 6.1 unlike the position with 6.2 under which you do need to first have obtained judgement
Is there anything above I can clarify for you?
Does the above answer all your questions or is there anything I can clarify or help you with any further?
so a court can not accept a 6.2 form if you have not gone to a court for the debt first
That is correct. There are two specific forms 6.1 and 6.2 depending upon whether you have not or have obtained a judgement respectively. Unfortunately the correct form must be used depending upon the circumstances.
Unfortunately this means you would have to reserve the correct form 6.1 to seek to make the individual bankrupt but of course the more positive news would be that it is perfectly possible.
Is there anything else I can help you with?
no thanks you have answered my questions superbly I am very grateful. kind regards graham