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JimLawyer
JimLawyer, Solicitor
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Experience:  Senior Associate Solicitor
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We have a supect Rogue Trader who we have paid for upfront

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We have a supect Rogue Trader who we have paid for upfront and has not reappeared to complete the work. Just investigating our options
JA: Where are you? It matters because laws vary by location.
Customer: Manchester, England
JA: What steps have you taken so far?
Customer: We have reported to CheckaTrader who recommended Tradesperson
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: We made a online bank payment for the work, although they originally requested cash

Hello, this is Jim and welcome to JustAnswer. I will be the lawyer working with you today.
Sorry to hear of the issue. I will set out my written answer shortly.

Your options would depend whether you have a contract with the trader, if he is a sole trader, or if he has a limited company and your contract is with the company. As the two are separate.
Not only that, some directors dissolve their companies to avoid paying court judgments - so this is also a consideration. I would only ever recommend you pursue someone if you know they can a) be traced and b) have the cash to pay a court judgment.
It is a red flag in my view that they have disappeared. You can ask Trading Standards if they know of any similar complaints about this trader - you can reach them on 0808(###) ###-#### Depending on whether the trader is a sole trader or goes under a limited company, you should consider asking a litigation tracing agency to find him and also conduct an asset search - that way you will know if it will be worth suing them or not. I can give you details of tracing agencies if you wish.
You mention you paid by bank transfer - you should get on the phone to your bank now and ask if they can charge back the funds - they can do this as long as you are within 120 days of payment and assuming the trader has not sent the funds elsewhere. If they have - you need to then consider court action and I can of course give you details of how to sue them if you want me to.

I hope this helps and answers the question - my goal is to ensure you are happy with the answer and have the information you need. If you have any follow up questions then please let me know. I will reply as soon as I can to help with any further queries.

Many thanks,
Jim

Please let me know if the answer helped or if you need me to cover anything else?. I am happy to clarify the answer or if you have any follow up questions. If so, I’d be grateful if you would let me know. I am free most days, including weekends, so feel free to ask me anything you are unsure of.

Best wishes,

Jim

Customer: replied 8 days ago.
Our only contact with Trader is a mobile phone number, as the business address is not legitimate. We sourced them through Checkatrader who I understand do a full vetting process. Are checkatradre obliged to disclose their contact infiormation

For the purposes of litigation, yes. You should make the request to Checkatrader and they should disclose the details to you

Customer: replied 8 days ago.
could you advise the steps we need to take if we need to consider court action? is it advisable to contact the police at this stage. They are randomly responding to our texts with fake promises but never arrive on date.

Yes, it would do no harm to run this by the Police on the 101 number.
In terms of a civil action, once you have their details I would recommend that you send them a formal letter before action to demand payment within 14 days and say that if they do not pay you, you will issue county court proceedings against them. I will copy and paste a letter shortly for you to use.

You may also want to threaten a report to Trading Standards (who can be contacted on 0808(###) ###-#### though you may have already reported them?.

You will need to register at https://www.moneyclaim.gov.uk/web/mcol/welcome so that you are ready to issue the claim in the event they dispute the claim and do not pay you. The website is very user-friendly and you would not need a lawyer to use the money claim site.

Claims with a value of under £10,000 are classed as a "small claim", so legal costs are not recoverable and the matter may be dealt with on paper by a Judge, not at a hearing. This means the parties are on an equal footing, so you don’t need to worry about legal costs if you lost.

A hearing may be necessary if the court thinks that oral evidence is required to dispose of the case.
Here is a user guide for the money claim online site: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/762843/mcol-userguide-eng.pdf

The court will then issue the claim and they will send you "notice of issue". The papers are served on the defendant who then has 14 days to acknowledge the claim - they do this by filling out an acknowledgment of service and they post it to the court. They indicate their intention when they do this, i.e. whether they admit the claim in full or partly, or if they deny the claim. If they want to defend the claim then their defence is due by 28 days from the date the court served them with the papers. The central court processing centre then sends the claim to the defendant's home county court for case management and directions - the directions will give a list of dates which you both must comply with. If there is no settlement then the claim will be dealt with at a final hearing which takes anything from 9 to 12 months from when you start the claim - longer if the claim is higher value. You can pursue the claim yourself or use a law firm. For the hearing you can use an advocate if you wish, though it's not compulsory. I have details of law firms and advocacy agencies if you would like those. Though in a small claim you won't be able to recover their charges from your opponent. A small claims hearing is easy to do, it's quite informal and no lawyer is required.

Claims between £10,000 and £25,000 are subject to fixed costs only so if you lose then the risk is minimal. Further, the money claim website allows you to sue for an amount up to £100,000.

You would claim the sum for the loss, the court issue fee (details of the money claim fees are listed here at page 5:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/904862/ex50-eng.pdf) and court interest which is 8% calculated on a daily rate from the date of loss to date of court judgment.

So for example if you were owed £10,000, interest would be £2.20 per day, which you can also claim.

The site allows you to calculate the interest and add it to the claim. If a hearing is required then there is a fee for this too - see page 7 of the previous link for details. Again, that fee is recoverable if you win.

If you are on a low income or have low savings (or in receipt of benefits), you can ask the court for a fee remission so you do not have to pay the court issue fee.

If you are eligible, let me know as you cannot use the online money claims site – you have to use the paper method, which is an N1 claim form sent to the County Court Money Claims Centre (I have a copy, let me know if you would like one).

If you win then once you have the CCJ from the court the defendant has 14 days to pay in full. If they do not then it gets registered with the credit agencies after 30 days. You can also enforce the CCJ with the county court bailiffs or transfer the debt to the High Court for a small additional fee assuming the total amount owed is at least £600 and you can use the high court enforcement officers who have greater powers than county court bailiffs. The transfer fee is added on to the debt and payable by the defendant.

There are other enforcement methods which I can help with, including bank account freeze, charging order on their property (and then apply to force a sale), application to wind up the company if £750 or more is owed (if suing a limited company), apply to summons them to court for questioning, apply to bankrupt them if they are an individual or sole trader and they owe £5,000 or more - all of which can ensure you are actually repaid the money.

You may find they just pay you after receiving the letter before action – hopefully they will want to avoid litigation. If you prefer a law firm to do this for you, the following is an example and they offer a fixed fee : https://stormcatcher.co.uk/practice-areas/dispute-resolution/small-claims-lawyer-service/

(this is the template to fill out and use before you issue a claim against them - so you can give them a chance to avoid court action..)

(insert their name and address) (insert date)

LETTER BEFORE ACTION

Dear (name),

Re: Claim for (insert sum)

I refer to the above matter. (Insert details of the dispute).

This letter is being sent to you in accordance with the Pre-Action Protocol (“the Protocol”) contained within the Civil Procedure Rules (“CPR”). In particular, I refer you to paragraph 7 of the Protocol, and paragraphs 13 to 16 of the Practice Direction on Pre-Action Conduct and Protocols regarding the Court’s powers to impose sanctions for failing to comply with the provisions of the Protocol.

I therefore put you on notice of my intention to issue county court proceedings against your company for my losses should I not receive payment in full by 4 pm on (insert date 14 calendar days).

Should court proceedings be necessary I will claim the court issue fee and statutory interest. Should I succeed in obtaining a judgment, same will be transferred to the High Court for enforcement against you whereby further costs will be added to the judgment sum.

I trust the above will not be necessary and I therefore look forward to hearing from you as a matter of urgency.

Yours sincerely,

(insert name)

Customer: replied 8 days ago.
that is very helpful Jim, could you advise of tracing agencies mentioned.

Ex police generally work for them so they have a decent success rate...

And another one if you need it: http://www.bnhassociates.com

Customer: replied 8 days ago.
Just one last question Jim. Is there a limitation of time I need to give them to resolve problem before I commence action. They keep pushing the work out by a date, but a lot of red flags have now been raised.

You would have up to 6 years to issue a claim (from the date they breached your consumer rights)

But to answer that query, it depends what is reasonable in the circumstances - if it was me I would give them 14 days to resolve this

JimLawyer and other Law Specialists are ready to help you
Customer: replied 8 days ago.
I was thinking 14 day too, which has now passed. Thank for your help and time Jim. much appreciated.

No problem, yes 14 days is the usual timeframe in my view. If you leave it further the more chance they will "get away", etc.

Customer: replied 2 day ago.
Good afternoon Jim. we spoke last week. We requested rogue trader cancel work and refund last week. but they have gone silent. (although are reading whatsapp requests just not responding). As the amount is relatively low £2700. would you recommend pursuing ADR rather than CCJ route?. you also mentioned alternative enforcement options. could you provide details on this? kind regards. Jamie

Hi, ADR needs both parties to agree for it to work so I would go down the small claims route.
If you win, you can pursue the following (I favour option 2) :

1. Apply to court to order they attend a hearing and confirm what they can pay. You do this by filling in and sending form N316 with fee of £55 payable to HMCTS:

(https://www.gov.uk/government/publications/form-n316-application-for-order-that-debtor-attend-court-for-questioning)

2. Instruct court bailiffs to attend and collect. Fill in and send form N323 (https://www.gov.uk/government/publications/form-n323-request-for-warrant-of-control)

A fee of £77 is payable (if you sued online) or £110 (paper method) payable to HMCTS.

Alternatively you can apply to transfer the CCJ to the High Court so that you can use the high court enforcement officers (who have far greater powers than county court bailiffs including seizure of goods to sell at auction and forcing entry to premises). The following company can do this for you and they add their fee to the CCJ sum: https://www.courtenforcementservices.co.uk/services/ccjs-transferring-high-court/

3. If he is employed, apply for attachment of earnings order :

(https://www.gov.uk/government/publications/form-n337-request-for-attachment-of-earnings-order).

£110 fee payable to HMCTS.

4. Apply to freeze his bank account (if it is in credit - this only works on one date though) and the court orders the funds to repay the CCJ :

(https://www.gov.uk/government/publications/form-n349-application-for-third-party-debt-order).

£110 fee payable.

5. Apply for a charging order on his property (if they own it) so the money is repaid when the property sells. You can also apply to force a sale :

(https://www.gov.uk/government/publications/form-n379-application-for-charging-order-on-land-cpr-part-73).

£110 fee payable.

6. Apply to wind up their company if you sued a limited company and they owe you £750 or more:

https://www.gov.uk/wind-up-a-company-that-owes-you-money

£280 fee and £1600 petition fee is payable

Customer: replied 2 day ago.
Thank you Jim. our biggest concern is that all we have is tradespersons mobile number and fictitious address. Checkatrade will not disclose company address citing GDPR list. assume we need an actual address before pursuing further action?

Yes you would need that - any of the tracing agencies I mentioned should be able to locate him and his address.

The trace fee shouldn't be much and you add it on to how much he owes you

Customer: replied 2 day ago.
Thank you for your help again Jim. will look to go down the tracing route prior to legal action.

No problem, thanks

Customer: replied 2 day ago.
just a quick a one. you mentioned other enforcement options. bank freezing etc. could you elaborate on this?
Customer: replied 2 day ago.
sorry think you mentioned that above thanks

Once you have a CCJ you can apply to freeze their account but it only works on one date and assumes he has money in there (not in an overdraft)

Customer: replied 2 day ago.
If he does not have funds. do we have to reapply with another option or do we no longer have the option to pursue a claim

You can use other enforcement methods. The CCJ lasts for 6 years.

Customer: replied 2 day ago.
Great. is there any claim against Checkatrader for sourcing this tradesperson or is the claim solely against the trader?

No, only against the trader unfortunately

Customer: replied 2 day ago.
Thought so. Could I raise another unrelated question? my mother is looking to write a will
do we need to do this through a solicitor?

It depends if it's a complex will or not. If not then she could tailor one and download one at http://www.lawdepot.co.uk and it then needs to be signed in the presence of a witness (who cannot be a beneficiary under the will). This is a separate matter though and should go in a new question. If it's a complex will then if you could post a new question - a wills expert will help.

I've proposed a premium offer for ongoing Q&A for this question - for anything else above what we discussed on the 10th.

You may have membership (it usually goes on to membership after 7 days) or you could post a new question and if you want me to deal, just mark it for my attention ("FAO:JIM").

Thanks

Customer: replied 2 day ago.
It should be fairly simple. she does not own her own property or have any debts, so would just be distributing her bank account assets/pensions between her children/grandchildren. Thanks for your help Jim

No problem, she would be OK with that basic will on that site in my view. If she tailors it, print two copies. Sign both in the presence of two witnesses. She should keep one copy safe and if she has a solicitor give a copy to them, or if she wants someone to be an executor (friend or family member or her solicitor) then pass a copy to them too

Customer: replied 2 day ago.
Thank you Jim. Your assistance has been great.

My pleasure, in the search box on that site it's "last will and testament".

Thanks and have a good day