Issuing a warrant against a company - advice please!!

[Clueless]

Hi

Found this site and hoping someone out there might be able to guide me through the next step in issuing a warrant against a business to reclaim money - as Consumer Direct are unable to offer advice and the Courts cannot comment.

So a brief history:

* Items of furniture were bought from an independent retailer
* Deposit for the full order was paid - only half the items arrived in the agreed time
* Six months later the remaining furniture still hadn't turned up
* Numerous letters and phone calls later the order was cancelled and the furniture which had been delivered was returned to the store (unused and in original packaging).
* A refund on the deposit at that time was requested - and denied.
* Several more letters later and no response so we took the store to court.
* The court found in our favour as no defense or dispute was lodged by the store.
* We then filed for immediate payment of the deposit, plus court costs, plus interest.
* 6 weeks has now passed and nothing has been received - no money, no letter, nothing.

We're now told that the next step is to issue a warrant against the company - another chunk of money we'd rather not spend.

The total amount repayable is only in the region of £800 but seems that there is no way to get it back without paying huge amounts more...?

So the questions are this:

1). High Court or County Court? Not sure what the difference is between these two in terms or issuing a warrant. All the decisions to date have been via the county court indicating that it's maybe best to keep dealing with them...?

2) What power does "issuing a warrant" actually have? Not quite sure what happens when we do this?

3) Assuming the warrant doesn't work - what other options are there to recover this money. Seems like a massive failing in the legal system that big companies like banks always seem to get their money but the little guy comes unstuck DESPITE having actually won the decision of the court.

Any help hugely appreciated - would like to get this issued in the next day or two because I'm worried that the store may become slightly unstable in the future (ie - they always seem to be having a clearance sale...what if they suddenly go bust?!)

Thanks in advance.

[enaid]

Re: Issuing a warrant against a company - advice please!!

Hello Clueless,
Sorry I can't answer your question I am not that clued on this. I will however make sure you have a reply soon Enaid xx

[argentarius]

Re: Issuing a warrant against a company - advice please!!

If you submitted the claim via Moneyclaim Online in the first place, it is an easy next step in the process (online) to enforce judgement.

I have done so and it took no effort at all.

As it's over £750, if they are turned away by the bailiffs (and that seems unlikely if they have any goods worth seizing) then you can petition for a winding-up order. This is likely to get them moving very quickly as they won't be able to continue trading if that happens.

[Clueless]

Re: Issuing a warrant against a company - advice please!!

That's great - thanks for the advice.

So far everything has been on Moneyclaim online so that at least is a bonus that I can do it from the (relative) comfort of my front room.

Just to clarify though: I issue this warrant and that means that bailiffs are instructed to visit the premises and recover the debt. If he agrees to pay up in cash then it's as simple as getting the money back from the court in due course. If he doesn't agree to pay up then the bailiffs can seize goods up to the value of the debt. ... but the shop can actually refuse the bailiffs access and can turn them away empty handed.

My experience of this guy is that he's pretty beligerant and to date has done everything he can to avoid taking responsibility (including completely ignoring the courts). I passed the shop last week and it's got quite a bit of stock - some of it pretty expensive too - so unlikely that they wouldn't have the assets to cover my measly £800 but I am pretty certain that he's not going to settle this debt willingly.


...

[Guest]

Re: Issuing a warrant against a company - advice please!!

Forget moneyclaim online. The online service is utterly useless for this kind of thing as you have seen.

What you have is a judgment in default, which is not a win. Do you have the N30 [Judgment for Claimant (in default)] from the court? It will be Northampton County Court Bulk Centre who will have sent it to you.

This can then be enforced, by issuing a warrant of execution. In order to do this you will need to file an Form N323 (request to issue a warrant of execution) However, even at this stage, the Defendant can file for a set aside of the original judgment and a stay of execution, so be aware of that. If the set aside is granted, which is highly likely, then you will not be able to recover the fees you paid in order to obtain the judgment or the warrant of execution. What is more, if you object to the set aside and it is granted, you may be liable for the Defendants costs. In the event of a stay of execution, you are not told by the Court that a stay has been applied for and the first you may hear about it is when you are sent details of the set aside hearing.

If the Defendant does not file for a set aside or a stay of execution and you obtain the warrant, you can choose what to do next.

There are different types of Bailiff, a County Court Bailiff executes Warrants of Execution for County Court Judgements and are generally for debts under £5000. If the debt is over £5000 then you must issue a High Court Warrant or a writ of Fieri Facias, which are the High Court equivalent of a County Court Warrant of Execution. This will be collected by a High Court Enforcement officer of Sheriff’s Officer.

However, as your claim is over £600 if you wish you may have this collected by the High Court Enforcement Officer too.

The High Court Enforcement Officer can force entry into commercial properties, including shops for example in order to execute the writ and they are paid on results, so if may be wise to appoint these people if you can, although High Court procedure is different from county courts and can be complicated and more expensive.

Decide what you want to do and I can advise further.

[Amethyst]

Re: Issuing a warrant against a company - advice please!!

Have a little read of this - its aimed at people gaining default judgements for bank charge claims but the warrant of execution etc is the same.

Legal Beagles


or read what Cets written above

[Clueless]

Re: Issuing a warrant against a company - advice please!!

Cetelco

Thanks for the info. I think from the basis of the fact that it's only just over £600 and from what I'm reading a High Court process can go over a thousand pounds, the only real option is to process the warrant of execution through the County Court. We honestly can't afford to be out of pocket at this stage, let alone pay any more into the process (if it's not guaranteed we'll get it back).

Before I do this, is it worth writing to the owner one last time offering a final opportunity to refund the deposit back (we now have zero goods of his in our possession and he has half the money for the entire order) and say that we will be following with the warrant if not.

I'm absolutely certain that he will not respond to this anyway, but wondered whether it will go in our favour later down the line with a court?

Reading on from what you were saying. I issue the county court warrant, he decides that this one he will respond to and files for a set aside. Then what? Do we get a court hearing to try and sort it out? Again, I'm as certain as I can be with these things (having followed Consumer Direct advice from the outset) that we have given many opportunities for him to resolve the matter and that it would be ridiculous for a court not to find in our favour....if only we could actually get him to court. No one seriously orders a table with a 2 week waiting time and then still expects to honour it when it doesn't turn up 6 months on....!

I'm thinking at this stage that either a) he is incredibly lazy and doesn't want to give this the time of day or b) he's been down this route before and knows how to play the game.

Any suggestions on how to play him at his own game welcomed...

ps. Stealing £800 worth of furniture back would be a bad move, right? :-)

[Mochamoos]

Re: Issuing a warrant against a company - advice please!!

ps. Stealing £800 worth of furniture back would be a bad move, right? :-)

LMAO right!

[Guest]

Re: Issuing a warrant against a company - advice please!!

I would write to him once more and inform him that he has seven days from the date of the letter to pay you or you will file for a warrant of execution whereupon you will instruct bailiffs to visit him and recover the money. Your claim at that time will increase as there will be extra costs.

Let me know if you want a hand drafting the letter.

[Clueless]

Re: Issuing a warrant against a company - advice please!!

Cetelco - yes please if you have experience in these things.

I'll PM you.

[argentarius]

Re: Issuing a warrant against a company - advice please!!

I'm surprised, Cetelco, that you say that Moneyclaim Online is useless for this sort of thing.

I obtained judgement in default in my case too, and then issued a warrant of execution, also through MCOL. This led to me receiving a cheque from the defendant in full settlement, followed by a later cheque for the bailiffs' fees.

Whilst you could write to the defendant of the claim telling them to pay up or you'll instruct bailiffs, I don't honestly see the point. They know that you won the judgement in default, and that they should pay up.

[Clueless]

Re: Issuing a warrant against a company - advice please!!

In all honesty I know that they won't respond to the letter - a dozen emails and three recorded delivery letters (plus the court letters) to date have yet to get a reaction. The only reason I am putting it out there is so it looks more favourably on me acting 'reasonably' if they dispute the warrant and I get my day in court. I'm assuming that's what happens if they get a set aside.

I think at this stage I'm just worried that after all the money and time spent it could end up just being laughed off by them - as i don't really have the money to hire a flash legal team and thus far the legal process has seemed to be in favour of the company rather than the consumer (or maybe after nearly a year I've just had enough...!)

[Guest]

Re: Issuing a warrant against a company - advice please!!

I'm surprised, Cetelco, that you say that Moneyclaim Online is useless for this sort of thing.

I obtained judgement in default in my case too, and then issued a warrant of execution, also through MCOL. This led to me receiving a cheque from the defendant in full settlement, followed by a later cheque for the bailiffs' fees.

Whilst you could write to the defendant of the claim telling them to pay up or you'll instruct bailiffs, I don't honestly see the point. They know that you won the judgement in default, and that they should pay up.

I think your experience is typical of what should happen and in most cases, what does happen, however, over ten years of litigating has taught me that judgment in default is not a win, far from it. In the case of Masters v Leaver [1999] it was held that a judgment in default means just that - it is a judgment obtained due to default. It does not mean that the court has agreed with what was claimed, or favours one or other case.

At any point, all the Defendant need do is claim that they have not had sight of the court claim and that service has failed and they can apply for a set aside.

If the defendant was unaware that service has been deemed to have occurred, the Defendant in this situation should be entitled to have the judgment set aside as of right on the grounds that he had received no notification of the proceedings and was therefore a stranger to them. In Law v St Margarets Insurance Ltd [2001] the Court of Appeal allowed judgment in default to be set aside despite the defendant’s solicitors’ procedural errors in failing to file an acknowledgment of service and in failing to ensure that the statement of truth in relation to the evidence in support of the application was signed by the right person. The overriding objective required that the default judgment be set aside in order to enable the merits of the defence to be determined. In Lloyds Investment (Scandinavia) Ltd v Ager-Hansen (2001) a default judgment was set aside on the ground that the defendant had a real prospect of success.

Since claim forms are not sent via recorded delivery the courts have little option but to grant the set aside, to do otherwise would be to unfairly prejudice the Defendant as their defence has not been seen by the court.

Even at the point of a warrant of execution, a stay may be granted. What is more, whilst a set aside usually requires a hearing at which both parties must attend, a stay can be granted ex parte.

A determined Defendant can play the system for months and eventually, judgments and warrants expire.

It is up to the Claimant to manage the claim and drive it forward through each stage.

Should this fail, a Statutory Demand can be issued, which is a precursor to a petition to wind up. However, I would be reluctant to issue a Statutory Demand on a judgment debt where that judgment was obtained by default. If there is any dispute as to the validity of the alleged debt, then issuing a Statutory Demand can backfire on you quite spectacularly.

It is a well settled principle of law that a petition founded on a disputed debt should be dismissed by the Court. The test often applied is whether the debt is disputed in good faith and on substantial grounds. If this is the case, the petition will be dismissed as of right because the petitioner will not be a creditor with the standing to present a petition. Such petitions are normally treated with great caution by those receiving one, but should also be treated thus by those issuing due to the serious consequences of a wrongly issued petition which may result in an injunction against you, the issuer and a sizeable order for costs.

Writing one more time allows the Defendant the opportunity to pay, which they may not take, but it demonstrates to the court that as the Claimant you have complied with the Overriding Objective at all times.

[argentarius]

Re: Issuing a warrant against a company - advice please!!

Thanks for your knowledgeable comments, Cetelco.

I was probably lucky that the defendant in my case was more lazy and stupid, than they were wilfully trying to avoid paying what they should pay me.

The whole case was centred on the poor wording of their terms and conditions, which in turn led to a (I thought) fairly credible argument that those terms were unfair. I presume that they didn't bother defending the case because it wasn't cost-effective to do so.