Court claim in the UK even though debtor does not live there, but ...

[Viv13]

...has employer and real property there (title was too long, so here is the rest of the title)

Hello, I hope this is the best section for my question. I was wondering whether you could help me with an issue I tried to research with no clear results.

I have a contractual claim against someone who refuses to pay their debt and has ceased all communication thereby making an amicable settlement impossible. They go through great pains not to divulge their new address (which is not in the UK), I do however have their employer's address as well as the address of real property they own - both of these in the UK. I do not live in the UK either. It is possible to go through the small claims court on the basis of this, is there another option to take legal action in the UK on the basis of this (maybe by having a writ from my country of residence executed in the UK) or is it not possible at all? I read that it is possible to go via the employer's address and that a writ is executable against the employer (for the debtor's salary), but I can't find detailed reliable information on how to proceed and whether this is possible if neither I nor the debtor live in the UK.

Sorry if this sounds rather complicated. Any advice would be highly appreciated. Thanks for your time and best wishes!

[R0b]

Rule 6.9 of the Civil Procedure Rules dictates service of the claim form - get it wrong and you could be punished with a costs order against you for defective service should the defendant set aside any judgment as a result.

In a nutshell, the rules for service are set up in a tiered manner:

Step 1. Do you know the defendant's usual or last known address, and if so you can issue it there but it must be an address they have lived at. If you have reason to believe they no longer live at that address then you follow step 2.

Step 2. If you don't know the address, you must consider whether there is an alternative place or method of serving the claim form on the defendant. You have identified the employer so that could be one option as a place of service but in terms of method, if you know that person's social media which they use regularly e.g. Facebook, Twitter, LinkedIn etc. then you should consider that as a method of service. In either case, you must make an application to the court for an order to serve the claim form in that manner. Given that the defendant is being evasive, you may want to consider asking the court to use several methods of service to ensure the maximum exposure of the defendant receiving the claim form.

3. If there is no other way of identifying a place or method of service under step 2, only then can you consider sending the claim form to the last known address.

Note, if you make an application to the court for alternative service you will not be able to use the Money Claims Online Service and you will need to use the paper method throughout.

Hope that answers your question.

P.s. about your question on claiming money through the employer, this is one of several enforcement methods and it is called an Attachment of Earnings Order. Also, if none of you live in the UK then there may be a question as to why you are using the English courts to bring a claim and you will need to justify that if challenged.

[Viv13]

Thank you very much for this useful answer and for taking the time to write it. I wasn't aware that social media could be used as a way to serve the claim form - however, the debtor will ignore it so it's also a question of where to execute a writ. This would be the reason why we want to use English courts to bring the claim - the debtor is a British citizen, works for a British company and has real estate in England. Going through the employer would literally be the only way to reclaim the money. I don't know if that would be reasonable justification to a challenge of why the English courts are used?

It's also good to know that the online option can't be used in in that case, also thanks for the information that going through the employer is called an Attachment of Earning Order - I will try and find some more information on that in general.

So, yes, that answered my question and helped me a lot. Many thanks!!

[atticus]

If the debtor has real estate in the UK this may also provide an avenue of enforcement, via a Charging Order.

[Viv13]

If the debtor has real estate in the UK this may also provide an avenue of enforcement, via a Charging Order.

Yes, that was also a thought I had and one reason I was considering going via the UK, as basically everything that could be claimed from this person is in the UK. I'm just still rather confused as to the procedure. ROB described it very well, I did some further research, but am still not sure how exactly to proceed here and whether I can even put in the claim as neither I nor the debtor live in the UK. It all seems rather complicated - no wonder with this constellation or several countries. I will try to go through my information step by step and - if this is okay - might post further questions here if something is unclear.

[R0b]

I guess part of the issue in assisting is we don't actually know the facts of the dispute. Are you able to provide us with some answers to the questions below?

1. Can you give a summary of the dispute?

2. Was there a written contract in place and if so, did the contract include a jurisdiction and governing law clause? If so, what was the law that governed the contract and did it specify a jurisdiction?

3. Are you both based in the same country and if so what country is that?

4. Do you know if the defendant permanently lives in the country or whether he travels back to the UK from time to time?

I'm not particularly clued up on the ins and outs of whether English courts have jurisdiction to hear your case but there are normally 3 requirements that would need to be satisfied:

a. There has to be a serious issue to try. In other words, you will need to show there is a reasonable prospect of success as opposed to something that is just fanciful.

b. Do you have a good arguable case? Not to be confused with the first requirement, you would need to show evidence to the court that you have a solid case against the defendant. Based on the material shown to the court, do you have a better argument than the defendant? If so, you will meet this requirement.

c. England must clearly be the appropriate court to hear the claim. This is usually the court's discretion on whether the English courts are best placed to hear the claim. For example, if your contract was a written one and it stated that the governing law was French law but any country has jurisdiction to hear disputes, the court may decline on the basis the French courts are better placed to hear your dispute, particularly if you are both domiciled in that country. One of the arguments you may put forward is (assuming the facts are true) that the Defendant is an English national and although is resident in another country, still travels back to the England from time to time and he is also tied there because he is employed by an English company and also he has property in this country too. Also if he is only abroad temporarily and that any judgment would likely need to be enforced in in England in order for there to be real justice served.

Note I've only paraphrased the requirements generally as these requirements can be much more complex than I've stated. On a separate note, have you considered issuing a claim in the jurisdiction you are living in and if you obtain judgment, you then ask the court to rubber stamp that foreign judgment and turn it into an English judgment so you can enforce your rights? There are additional steps to this and your evidence would need to be concrete to show the defendant has been evasive every step of the way despite attempts to obtain his address (and on that thought have you considered using a tracing agent?). Something worth looking into as an alternative.

[Viv13]

I guess part of the issue in assisting is we don't actually know the facts of the dispute. Are you able to provide us with some answers to the questions below?

.

Thanks for your reply and the questions. I will answer them tomorrow or Thursday in more detail as I'm checking this matter on behalf of a family member and I want to make sure that I have all my facts correct when answering your questions, especially when it comes to the solidity of proof. I know there is written proof but not what form it has exactly.

As for obtaining judgment in my own jurisdiction (Germany. The debtor does not live in the same jurisdiction), I did think of that and am also trying to find out more information about that.I would prefer to go that way naturally (and have done it before, but it was a clear-cut case - address known, only two countries involved, not a third one) but serving the papers seems to be a major issue - there is conflicting information on whether it's possible here to serve at the person's place of employment if the residential address is not known. So if the person can't be served and is living abroad, no judgment can be obtained. Also, there is no agreement about serving court documents with the debtor's current country of residence.

There is evidence that the debtor is actively boycotting every attempt to find her address (not only with us but with another creditor), so that should be no problem.

I will write more details once I verified the facts I have.

[Viv13]

I guess part of the issue in assisting is we don't actually know the facts of the dispute. Are you able to provide us with some answers to the questions below?

I will do my best. I hope you understand that I will leave some things vague for confidentiality reasons, maybe I'm exaggerating, but I'm not sure whether the debtor might read here and use this to try and thwart some actions.

1. Can you give a summary of the dispute?

There are several instances, all resulting from a tenancy. The debtor took items from the property - some upon agreement that he would pay them, some without permission. He also lied about having some repairs done, did something to hide this fact and used this to defraud money. The person left the property without properly ending the tenancy (meaning we did not have an option to check the property before he left). Ending the tenancy itself was okay, we knew that it was planned, but of course the agreement was that there would be a proper "handing over" of the property. The debtor has since taken great care to not reveal his new address.

2. Was there a written contract in place and if so, did the contract include a jurisdiction and governing law clause? If so, what was the law that governed the contract and did it specify a jurisdiction?

The sales agreement did not have a governing law clause. I'm not sure whether it was a contract or just correspondence about buying the items. There is however correspondence where he acknowledged that he owed money for these items and there are also several written promises to pay this amount.

3. Are you both based in the same country and if so what country is that?

Pls. see my answer above - not the same country.

4. Do you know if the defendant permanently lives in the country or whether he travels back to the UK from time to time?

I don't know that, though if I remember correctly he does travel back to the UK regularly.

I'm not particularly clued up on the ins and outs of whether English courts have jurisdiction to hear your case but there are normally 3 requirements that would need to be satisfied:

a. There has to be a serious issue to try. In other words, you will need to show there is a reasonable prospect of success as opposed to something that is just fanciful.

My reason for considering going through English courts is that this seems to be the only option to have success and there is - at least as far as I can judge - a reasonable prospect of success in the UK and only in the UK. The employer is in the UK and the debtor has real estate in the UK. There is no property of any relevance in the country where the debtor currently resides.

b. Do you have a good arguable case? Not to be confused with the first requirement, you would need to show evidence to the court that you have a solid case against the defendant. Based on the material shown to the court, do you have a better argument than the defendant? If so, you will meet this requirement.

As we have written communication acknowledging the debt, I would consider that a solid case.
As for the items the debtor just took from the house, there is no evidence that he took it, though there is circumstantial evidence. We would have reported the debtor for theft if we had his address and if the police system in that country would seriously follow up on this (which it wouldn't, as many locals confirmed). However, the major issue is the debt from the sold items anyway.
With regard to the alleged repairs, we have written communication about this agreement and proof (witnesses, documentation) that it hasn't been done which caused further damage.

c. England must clearly be the appropriate court to hear the claim. This is usually the court's discretion on whether the English courts are best placed to hear the claim. For example, if your contract was a written one and it stated that the governing law was French law but any country has jurisdiction to hear disputes, the court may decline on the basis the French courts are better placed to hear your dispute, particularly if you are both domiciled in that country. One of the arguments you may put forward is (assuming the facts are true) that the Defendant is an English national and although is resident in another country, still travels back to the England from time to time and he is also tied there because he is employed by an English company and also he has property in this country too. Also if he is only abroad temporarily and that any judgment would likely need to be enforced in in England in order for there to be real justice served.

This is all the case (though I can't vouch for the frequency of traveling) apart from the "only abroad temporarily", as the person is residing abroad (at least to our knowledge) - it's not a temporary stay like a business assignment or similar. However, the debtor works exclusively for an English employer, so there would be the attachment of earnings option as well as the real estate option.

Note I've only paraphrased the requirements generally as these requirements can be much more complex than I've stated.

That was very helpful as it gave me a good list to go through and think about the case and the requirements. I understand that they are likely to be more complex, but it's good to have a guideline. Thank you very much for listing them, much appreciated!

On a separate note, have you considered issuing a claim in the jurisdiction you are living in and if you obtain judgment, you then ask the court to rubber stamp that foreign judgment and turn it into an English judgment so you can enforce your rights?

Please see my answer above. It was my first thought but does not seem to be an option due to the debtor so carefully hiding his address. I would much rather go through my country of residence as I'm familiar with legal procedures here, but the servicing is a problem.

There are additional steps to this and your evidence would need to be concrete to show the defendant has been evasive every step of the way despite attempts to obtain his address

There is quite a lot of written communication showing that - I assume that would be sufficient? Debtor has carefully instructed third persons not to reveal the address. He is receiving mail at the old address (from creditors ...), so seems to hide the address from several people.

(and on that thought have you considered using a tracing agent?). Something worth looking into as an alternative.

I checked this option after reading your posting. Again, thanks for this idea. However, it would mean paying quite a lot of additional money. We are not talking about an extremely big debt here and finding a person in the country she lives in is at best a lengthy task - I already researched the options there. Authorities are not very helpful and a lawyer from that country actually told me the chances to find someone are rather slim. Which is of course exactly what this debtor is counting on.