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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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I have a CCJ and requested the examination of the party

Customer Question

I have a CCJ and requested the examination of the party owing me money to ascertain how best to enforce the judgement. I have now received notification from the court that they want to pay through a direct debit arrangement.
I think direct debit arrangement get set up by company's to collect regular payments not between 2 private parties.
I have requested the bailiffs who served the papers for me whenever necessary to ascertain the address of his employer to enable me to file for an attachment of earnings.
The person is claiming to not have a fixed address but to be living with friends. They are saying they want to pay £50 a months as they are employed as a porter and only have a modest income. At that rate it will take over 13 years to pay the debt off, not even adding interest.
What is my best next step?
Submitted: 2 months ago.
Category: Law
Expert:  F E Smith replied 2 months ago.

It is unlikely that they would pay by direct debit because it’s quite a complicated setup. It would more likely be standing order.

Does the person have the money to pay you?

If he has not got the money, it doesn’t matter what enforcement steps you take, you will not be able to enforce. If he a house, you could get a charge against the house. However if he is a man of straw and of limited means, or without a house with any equity, and you started to push the issue, he could declare himself bankrupt which means that you would get nothing.

If the debt is over £5000, interest will continue to accrue at the court rate of 8% per annum simple interest and the £50 per month will not actually cover those interest payments.

Before considering the next step, I need to know whether the person is able to pay you or has any assets.

Customer: replied 2 months ago.
If I knew what his assets or financial position were, I would not have asked for the examination ... he is basically pleading poverty but I think he is lying ... he is Nigerian and so is his lawyer
Customer: replied 2 months ago.
The examination result is rather disappointing as I have not been given copies of the evidence he supposedly provided, am I entitled to request that?
Customer: replied 2 months ago.
Your first answer has not brought me a step forward, so I am basically not happy at the moment
Expert:  F E Smith replied 2 months ago.

There are a limited number of ways of enforcing a judgement. It is a definitive list.

1. Statutory demand with a view to bankruptcy or at least the threat of.

2. Third party debt order to take money directly from his bank account provided there is enough money in the account to satisfy the debt

3. Attachment of earnings order to have the employer (if he is not self-employed) pay money to you directly from his wages

4. A charging order to put a charge against his property so that you will get paid either when he tries to sell or remortgage the property or if you want to force a sale.

5. You can obtain a warrant of control to send bailiffs to seize his assets for sale.

Hence, it really comes down to what assets he has and where they are as to which method of enforcement you use.

Customer: replied 2 months ago.
I am sorry but I don't feel you are bringing me forward here at all, I know I have to chose the method of enforcement and what the options are ... but where the financial situation is not clear the first step is to gain clarity through the examination - unfortunately that hasn't brought me much further other than that he says he is working as a porter and I have a company working on finding out the employer details - my question to you was what my best next step is ... you seem to be saying don't do anything if he hasn't got any money ... well, how do I know what he is saying is true, given that I have no visibility of the evidence. I asked whether I have a right to see the evidence he provided to the examiner - you have not answered that question. I am really not gaining anything here, very disappointed!
Expert:  F E Smith replied 2 months ago.

Under 71.6 of the Civil Procedure Rules

allows you to attend court and question and cross examine on the evidence.

It’s common for people to routinely lie at oral examination you are going to need some evidence to back up your assertion or you are going to need to trip the debtor up in what he’s saying or producing.

Customer: replied 2 months ago.
Given that the examination has already taken place and it took the threat of him being arrested to finally provide some information, I don't hold out much hope that that will realistically happen in the near future. I just find it rather frustrating that someone should get away with making a living out of defrauding people and playing the system. There must be a way of catching him out? According to the form I was given by the courts, he provided evidence - am I entitled to a copy of the documents he provided to the courts?
Expert:  F E Smith replied 2 months ago.

You can ask the court for a copy but they are not under any duty to provide them after the event. If you are going to appeal the decision, you only have 21 days to do so.

Customer: replied 2 months ago.
They only provided the document with a 3 months delay, so I would think that voids the 21 day period?
Expert:  F E Smith replied 2 months ago.

You could make an application to appeal out of time. You can only do so however if the judge made an error of law or an error of fact and you would have to have unequivocal proof of the lies

Customer: replied 2 months ago.
Hmm, I'm not sure that will ever come to anything ... So I can ask the court for the evidence but they don't have to give it to me. What about this offer to pay by direct debit - that is impossible, he would have to set up a standing order. Can I at least file for an attachment of earnings if the bailiffs can find his employers address? And would the amount of that attachment be set by the courts?
Expert:  F E Smith replied 2 months ago.

You can indeed apply for an attachment of earnings order but the bailiffs will not look for his employers address. You would need to do that yourself or find a private investigator to do it for you.

I don’t think there’s any point in getting hung up on the terminology of direct debit versus standing order because the court would assume that the defendant simply did not understand the difference.

The amount of an attachment of earnings order would be set by the court.

Please don’t forget to rate the service positive. The thread does remain open for further exchanges.

Customer: replied 2 months ago.
Maybe a mistake on my part, the company I used to serve papers when required in this case has offered to try and trace any employer and make the details available to me, so I will wait for their response for now
Expert:  F E Smith replied 2 months ago.

Some bailiffs organisations will do a whole load of different tasks and if they will do tracing for you, so much the better. It’s just that it’s not within the normal remit to go and find debtors if there is no address which can easily be found.

Expert:  F E Smith replied 2 months ago.

Incidentally, the one thing about the attachment of earnings order, as opposed to standing order, is that the debtor is not in control of it.

Customer: replied 2 months ago.
That's why I would prefer it, I get the impression he lies when he opens his mouth - at least the court would have assessed the amount if I go for an attachment of earnings. I just read somewhere you can only apply for an attachment of earnings of the person owing you money has failed to pay on a voluntary arrangement - so you believe I can file for an attachment of earnings straight away - if I can find the employers address that is of course ...?
Expert:  F E Smith replied 2 months ago.

What you have been told is correct. However I was anticipating Mr Slippery not paying so you need to get everything ready to pop off to the court in anticipation if he doesn’t stick to whatever is being ordered. Remember also that you can apply to vary the order if more information comes to light at some stage in the future that (for example) he has won the lottery.

Customer: replied 2 months ago.
Ok , so the first step will need to be to provide my account details to the solicitor he is using for him to set up a standing order ... then wait for him not to pay and at that point file for the attachment of earnings (should employment details have materialised)?
Expert:  F E Smith replied 2 months ago.

Yes. That’s it.

If he fails to make the payments, you can always make an application to court to make him reveal the identity of his employer to facilitate the order.

Customer: replied 2 months ago.
For him to reveal the details will take another 13 months or so ... he will drag it out as long as he can ...or say he lost his job or, or ,or
Expert:  F E Smith replied 2 months ago.

You can make an application to court for pre-action disclosure if he doesn’t release those details to you and that would normally take weeks not months.

It is not uncommon for slippery characters like this to keep losing their jobs.

Please don’t forget to rate the service positive otherwise I don’t get paid either. We can still exchange emails.

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