Success For The Busy Litigation Team

9th May 2019

Our Litigation team continue to be busy on Insolvency matters, both for creditors and debtors, especially businesses seeking arrangements to repay HMRC or to oppose the petitions (winding up and bankruptcy). We are also acting on dealing with petitions within the construction industry.

Opposing a Winding-Up Petition

A winding up petition may be challenged by a company on the following grounds:

1. The debt alleged in the demand to be owing is genuinely disputed on substantial grounds by the company.
2. The company has a genuine right of set-off against the creditor which exceeds the amount claimed in the demand.
3. In certain other limited circumstances (for example such as Jurisdiction, Company likely to become insolvent, Technical or procedural error or Delay).

The procedure to oppose a winding up petition is to file a witness statement in opposition in court not less than five business days before the date of the hearing of the petition (rule 4.18(1), Insolvency Rules). A copy of the evidence must also be sent to the petitioning creditor as soon as reasonably practicable (rule 4.18(2), Insolvency Rules). We can also seek a validation order and apply for an injunction.

APPLICABLE LAW: RESTRAINING A WINDING-UP PETITION

An injunction restraining the presentation of a winding up petition should be granted when there is a bona fide dispute over the relevant debt. The High Court set out in ReCompany (No.006685 of 1996)[1997] BCC 830 (§832F) that:

“The true rule, which has existed for many years, is the rule of practice that this court will not allow a winding. up petition to be used for the purpose of deciding a substantial dispute raised on bona fide grounds. It will not do so, as a matter of practice, because the effect of presenting a winding-up petition and advertising that petition is to put upon the company a pressure to pay (rather than to litigate) which is quite different in nature from the effect of an ordinary writ action. The pressure arises from the fact that once the existence of the petition is known amongst those having dealings with the company, they are likely to withdraw credit or refuse to continue to trade with the company on the ground that, if the company is wound up on the petition, their dealings with it will be subject to the provisions in s. 127 of the Insolvency Act 1986. In those circumstances it may well be commercially necessary for the company to pay a debt which is disputed on substantial grounds rather than to run the risk that the whole of the company’s business will be destroyed.” (Emphasis added). The Court of Appeal accepted the same in The Arena Corporation Ltd [2004] EWCA Civ 371. Materially, it set out that it is not the function of the Companies Court in the exercise of its winding up jurisdiction to adjudicate in respect of a genuinely disputed debt.

The authorities on cross-claim cases generally deal with cases where the primary debt is not in dispute, but it is argued that there is a separate genuine cross-claim between the parties which exceeds the amount of that debt. In such cases, in the absence of special circumstances, the court should exercise its discretion by dismissing or staying the petition Re Bayoil SA [1998] BCC 988.

The standard to be made out in an application to restrain is again that there is a “real prospect” of the cross claim being established and exceeding the debt (Re a Company[2013] EWHC

If you have any issues or queries regarding insolvency or debt related matters, you can contact our experienced and knowledgeable litigation team at ph@rogers-norton.co.uk or 01603 675639.

New London Meeting Facilities

8th May 2019

We are delighted to be able to announce the availability of our new Central London meeting facilities. The workspace is ideally located a short walking distance from Liverpool Street Station and very close to Farringdon station, which offers excellent connections for London Underground and mainline train services.

With many clients based throughout the UK and Europe and our ever increasing growth in specialist sectors, the availability of central London meeting facilities is a natural progression for the practice. In recent years, we have enjoyed considerable expansion in Construction and Building Developments (including Construction Disputes, Arbitration and Adjudication) and in our HMRC and Border Force Practice which deals with VAT and Tax issues, investigations, seizure and restoration of goods. We also find ourselves regularly representing clients in the London Courts, attending interviews with regulatory bodies and attending conferences with ours Clients and Counsel in London chambers. Therefore the ability to have an interview facility and a workspace in central London is an excellent addition to the company..

In addition to the expansion into London to meet clients’ needs, we are very excited at working with the business community at Cowcross and imparting and sharing our knowledge especially from the construction sector with likeminded businesses. We will hold regularly workshops and seminars addressing topical issues that the community face and we are very grateful to the owner, Alan Baxter for welcoming us to his business hub.

We believe the facilities will be a great addition to the quality of service that we can offer to both new and existing clients based in London, the UK and abroad.

Enforcing a Judgment Debt – Part 2

8th May 2019

In Part 1, two methods of enforcing a Judgment debt were considered, detailed below are further enforcement methods.

Order to Obtain Information

If a Judgment debtor does not provide information or details of any assets then an application may be made to the Court for an Order to Obtain Information. The debtor will be given a date by the Court to attend to confirm what assets they have. The attendance at the Court will be under oath and the debtor will be required to disclose information relating to their employment status, details of employer and earnings, details of outgoings and any dependants, details of property owned, additional income and savings. This method is quite good at flushing out the details and often results in the debtor then making a sensible offer to pay in order to make regular payments to settle the Judgment debt.

Third Party Debt Order

This method of enforcement is used where the Judgment debtor themselves are owed money by a third party. It is often used in business transactions where the Judgment debtor is owed money specifically within the building trade. If a Third Party Debt Order is obtained then this will require the third party to pay the debt owed directly in satisfaction of the Judgment debt.

Execution against Goods (Taking Control of Goods)

This is used by the Judgment creditor in seizing goods of the debtor which can then be sold to pay off the debt. In order to use this method of enforcement assistance is required from either a County Court Bailiff or a High Court Enforcement Officer who will attend at the debtor’s premises and seize goods or sufficient goods to the value of the Judgment debt. There are restrictions as to which goods can be seized for example if you are dealing with a debtor who is self-employed then tools of the trade cannot be seized as this would result in the debtor being unable to work. Also exempt are goods which are essential to daily living i.e. beds, fridge, oven, microwave.

The above and Part 1 gives a brief insight as to the possible forms of enforcement against a debtor. For further details and to discuss your requirements then please speak to the Rogers and Norton Debt Recovery team who will be happy to provide further assistance and advice.

Enforcing a Judgment Debt – Part 1

If a debt is owed to you, the actual obtaining of the Judgment is generally speaking the easy part in the process, the difficulty is in enforcing the Judgment against the person who is or appears reluctant to pay and settle the debt.

Once a Judgment is granted by the Court and a request for payment is made on occasions the money owed (or Judgment sum) is paid without fuss and the claim is then concluded. However there are situations where the debtor remains reluctant to settle the Judgment sum and this is where further help and assistance is required in the enforcing of the Judgment. Some of the different types of enforcement are detailed below and more will follow:-

Charging Orders

This method of enforcement of a Judgment is usually used where the value of the debt or Judgment sum is of quite a high value although it can be used for any value of debt. A charging order is the means of securing the Judgment debt against the debtor’s property. Although there is no automatic payment of the debt, this method of enforcement will result in the Judgment debt being secured against the debtor’s property and when they come to sell or re-mortgage the property the charge or debt will be paid from any available equity in the property and consequently the debt will be paid.

Attachment of Earnings Order

This is a very effective method of enforcement when dealing with a Judgment debtor who has no other real assets or property. An application is made to the Court for an order to be made against the debtor’s salary or earnings and the employer of the debtor will be required to make a regular deduction from the earnings and make the payment to the Court. The deduction is generally a percentage of the monthly earnings and is capped so that the monies the debtor receives each month does not fall below a certain level. The pitfall of an Attachment of Earnings Order is that it cannot be used against someone who is self-employed.

This is only two possible methods of enforcement further details of other methods will follow in Part 2!

For all your debt recovery and enforcement needs, speak to the Debt Recovery team at Rogers and Norton.

A Friend in Deed

3rd May 2019

Barbara Pond from our Private Client team, continues to give up her free time to support the Friend in Deed Little Visitors scheme at Corton House in Norwich.

Rogers & Norton have been sponsoring the visits that allow babies and children of all ages to visit the care home with their parents in order to make some new, older friends.

The events are brilliantly supported and bring a great deal of joy and happiness to both the residents and the children.

Little visitor mornings are held on a fortnightly basis with the home also able to participate in pen pal initiatives, special events and school projects.

Barbara has witnessed lots of new friendships develop over last few months and seen the way that Friend in Deed can promote kindness and reduce loneliness.

Border Force Seizures

3rd May 2019

The litigation team at Rogers & Norton are continuing to achieve success with the instructions they are receiving from companies and individuals involved in the importation of goods containing rosewood and ivory, after the ruling by the Convention on International Trade of Endangered Wild Fauna & Flora (CITES).

Musical instruments and furniture containing rosewood and ivory are still being seized by UK Border Force causing considerable disruption, due to detention of valuable stock and belongings.

Rosewood is a key component in the manufacture of many musical instruments, together with hardwood furniture and wooden board games.

Rogers & Norton are delighted to be helping support the Music Industry Association and their members, with the issues surrounding the importation of musical instruments containing rosewood and ivory. Our details are carried on their website advising that we are a specialist legal firm available to help the industry involving any of the following types of issues:

• Detentions and Seizure of Goods by the UK Border Force including goods stored in warehouses, detained/seized at Ports and Airports
• Restoration Claims
• Condemnation Proceedings
• Injunctions (including urgent injunctions)
• Judicial reviews (including claims for the urgent release of goods and damages for unlawful detentions, and injunctions)

Rogers & Norton specialise in handling HMRC Border Force claims relating to the detention and seizure of a wide variety restricted goods.

If you have any issues regarding the stoppage, detention or seizure of items by HMRC Border Force you can contact the team at ph@rogers-norton.co.uk or on 01603 675639.

Rogers and Norton Legal Academy

We were delighted with the recent coverage we received in the EDP concerning the Rogers & Norton Law Academy.

The final session was based on guidance and advice on developing and planning a career in the law. Solicitors Laura Rumsey and Charlotte Ranson together with Legal Executive Lauren Golder, all from Rogers & Norton, discussed routes to qualification in a Solicitors practice, whilst barrister Selina Bungsraz, from the East Anglian Chambers, discussed the process of being called to the bar.

The students from the four schools involved, Notre Dame High School, Wymondham College, Thorpe St Andrew High School and Langley School, were joined by parents and teachers for the final session. We received excellent feedback on the seven seminars we ran for the Academy, saying it proved an excellent opportunity for the students who found it very informative and confirmed their decision to study law at university.

We are already planning next year’s Academy and are looking to expand the number of schools involved in order to further inspire more students to pursue a career in law. The schools are already talking to pupils who would benefit from the experience and are keen to ensure they take part.