Recovering your debts

 In the current climate as a result of the continuing public health emergency you may be having difficulty recovering money owed to you for the completion of a job. This can very often have a huge impact on a company’s cash flow and ability to continue to trade successfully.

In the event that you are unable to agree a solution with the debtor, it can be helpful to discuss the problem with a solicitor who has expertise in debt recovery.

Often it is as simple as writing a letter to the person who owes you money – this will tell them that legal action may be taken if they don’t pay the outstanding debt. The impact of receiving a letter from a Solicitor can often produce the quick results people desire, many debts are paid on receipt with no further enforcement action required.

Talking with a solicitor can also help define your case in legal terms and help identify further action that may be available to you in the event of non-payment of the outstanding debt.

A letter before action (LBA) is a formal letter that requests the payment of a debt to you or your business and warns of the imminent issue of a court claim.

A LBA sets out what is owed to you or your business from a debtor and provides a set time period, usually 7 days, in which to pay – it is an essential requirement of the debt recovery process.

Before issuing any legal proceedings, a letter before action must be sent or costs may be forfeited.

If your debtor is a sole trader (or individual), from 1 October 2017 you must adhere to the Pre Action Protocol for Debt Claims and are no longer able to send a standard Letter Before Action.

The changes revolve around increasing the amount of information shared between parties, to a sufficient enough level that the parties can understand each other’s position and come to an agreement without the need for court involvement.

Whilst many Solicitors will make a charge for a letter before action there are many occasions where we will normally produce the initial letter free of charge.

Our highly experienced and knowledgeable debt recovery team understand the need to respond quickly and decisively to secure payment of outstanding debt. The ability to offer a fast turn-around is vital to help clients secure payment of monies owing to them.

We understand that unpaid invoices can affect your business cash flow. Delayed payments can create issues with uncertainty over when, or if, you will get paid. Our debt recovery services are trusted by companies both large and small to recover their business debts.

We can advise on terms and conditions and interest claims, together with the enforcement action. Fees are agreed at the outset and our service is tailored to each client’s individual or business needs.

In a recent claim, a Mrs G provided us with instructions on morning of 17 June to pursue monies due and owing to her, an e-mail together with letter before action was sent on the same day as receipt of instructions and by close of business on 19 June, monies to settle the outstanding debt had been received and the claim was then concluded. The client was extremely grateful for the very fast turnaround and to be in receipt of funds so quickly.

Notice periods for seeking possession of most residential tenancies in England increased to six months

 

Following on from our recent update in relation to the extension of the stay on possession proceedings to 20th September 2020, the Coronavirus Act 2020 has, as anticipated, now been amended so as to extend the amount of notice of possession proceedings to be given to residential tenants in most cases.

Background

When the Coronavirus Act 2020 (“the 2020 Act”) came into force on 26 March 2020, notice periods in relation to possession proceedings for certain residential tenancies were extended, in most cases to three months. This amendment applied to any notices being served during the “Relevant Period”, which began on 26 March 2020 and was due to end on 30 September 2020.

The 2020 Act also contained provision for the Secretary of State (or, in the case of Wales, the Welsh Ministers) to extend the Relevant Period and to alter the three month notice period by way of further regulations.

The provisions of the 2020 Act relating to residential tenancies are contained in Schedule 29.

Secretary of State for Housing, Communities and Local Government, Robert Jenrick, indicated that the notice periods were going to be extended in relation to England (having already been extended in relation to Wales) when he announced the recent extension to the stay in proceedings.

The New Regulations

The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (SI 2020/914) (“the Regulations”) came into force on 29th August 2020.

The Regulations apply in England only and make amendments to the 2020 Act. In particular, they:

• Extend the end of the Relevant Period until 31 March 2021 (regulation 1).
• Disapply certain parts of Schedule 29 to the 2020 Act so that where a landlord relies on particular grounds involving anti-social behaviour, the notice requirements have reverted to those in force before the 2020 Act was enacted (regulation 2).
• Increase the required notice periods for most residential possession notices, from three to six months, subject to several important exceptions (regulation 3).

Where the tenancy is a Rent Act 1977-protected or statutory tenancy, a secure, assured or assured shorthold tenancy (AST), the exceptions mean that the following notice periods apply:

• Four weeks, where at least six months’ rent is unpaid at the time the notice is served.
• Three months, where the grounds for eviction relate to the tenant’s immigration status or the tenancy is an assured tenancy or AST and possession is sought following the death of the former tenant.
• The notice period that applied before Schedule 29 to the 2020 Act came into force, where the grounds for eviction relate to anti-social behaviour, domestic violence or acquiring the tenancy as a result of a fraud.

For introductory and demoted tenancies, the exceptions set out a required notice period of four weeks in a case where the landlord seeks possession for reasons related to anti-social behaviour or domestic violence.

Amendments have been made to the prescribed form of notice under section 8 and section 21 of the Housing Act 1988 (“HA 1988”) and, for secure tenancies, to the notice of intention to seek possession. It is therefore important to ensure that you use the correct form of notice as failure to do so could result in the notice being deemed invalid.

For notices seeking possession under section 21 of the HA 1988, the period in which possession proceedings must be commenced under section 21(4D) has been extended from six to ten months from the date on which the notice was given.

Landlords who have already served a notice on their tenants before the Regulations came into force on 29th August 2020 will be relieved to hear that the amendments to the 2020 Act are not retrospective and so do not apply in relation to notices served before that date.

If you are a landlord or a tenant and would like further advice in relation to your legal rights please contact Elizabeth Gibson on 01603 675641 or at eg@rogers-norton.co.uk.

Further Extension to the Possession Stay

 In continuance of the government’s unprecedented package of measures to help ameliorate the economic effects of the Covid-19 pandemic, on 21st August 2020 the government announced that the possession stay, previously due to come to an end on 23rd August 2020, was to be extended to 20 September 2020.

The extension to stay has been effected by way of a further amendment to the Civil Procedure Rules 1998 (“the Rules”), which govern how civil cases in England and Wales (including possession claims) are dealt with by the Courts and the parties. The effect of the amendment is that all possession proceedings and all enforcement proceedings by way of writ or warrant of possession are stayed until 20th September 2020.

When a claim is stayed, this means that the Court cannot take any action in relation to it. For example, there will be no hearings and no orders, including possession orders, will be made (subject to a few exceptions set out in the Rules). Similarly, the stay on writs or warrants of possession means that where a possession order has already been made and has expired, bailiffs are unable to attend at properties to evict the tenants.

Concern has been expressed amongst landlords and members of the legal profession as to the resulting backlog of cases at County Courts across the country once the stay is lifted. In relation to this, Housing Secretary Robert Jenrick has stated that:

“When courts do resume eviction hearings they will carefully prioritise the most egregious cases, ensuring landlords are able to progress the most serious cases, such as those involving anti-social behaviour and other crimes, as well as where landlords have not received rent for over a year and would otherwise face unmanageable debts.”

It is not at this stage clear whether any further legislation or amendment to the Rules shall be introduced to effect this policy.

Interestingly, Robert Jenrick also announced, alongside the extension, that:

“The government also intends to give tenants greater protection from eviction over the winter by requiring landlords to provide tenants with 6 months’ notice in all bar those cases raising other serious issues such as those involving anti-social behaviour and domestic abuse perpetrators, until at least the end of March.”

It is not clear how or when this further measure will be introduced. The Coronavirus Act 2020, which came into force on 25th March 2020, has already had the effect of extending the notice period from 2 months to 3 months for Section 21 Notices and to 3 months (in most cases) for Section 8 Notices.

It remains to be seen what will happen to notices served since 25 March 2020 which provided 3 months’ notice as required by the amendments effected the Coronavirus Act 2020, whether the 6-month time limit for issuing proceedings from the date of serving a Section 21 Notices will be lifted or amended, and what grounds in schedule 2 of the Housing Act 1988 will be subject to the new notice period.

The past 5 months have shown that anything can change at very short notice, so landlords and tenants should stay alert to any future announcements.

The above changes do not mean that tenants are no longer required to pay rent, so if you are a tenant you should continue to pay the rent in accordance with your tenancy agreement. If you are unable to do so you should seek independent legal and/or financial advice and try to agree a payment plan with your landlord to minimise the arrears that build up and address those arrears once you are in a better financial position.

Similarly, if you are a landlord you should maintain contact with your tenant and if the rent is in arrears discuss with the tenant the cause of those arrears and how they might be addressed. It is also important to note that the extension of the stay does not prevent you from serving a Section 8 or 21 Notice or issuing proceedings. It just means that if you issue proceedings they will be stayed automatically. It also does not affect the validity of any possession order that has already been made; you will just need to wait until after the stay is lifted before you are able to have the tenants evicted.

If you are a landlord or a tenant and would like further advice please contact Elizabeth Gibson at eg@rogers-norton.co.uk or on 01603 675641.

Litigation Team Secures Dismissal of a Winding-Up Petition

The litigation team has recently secured the dismissal of a winding-up petition for almost £180,000 that had been issued against a company.

Under s. 122 of the Insolvency Act 1986 (“the Act”), a company may be wound up by the Court if, amongst other reasons, it is unable to pay its debts. s. 123 of the Act defines what is meant by “unable to pay its debts” and this definition includes where a company has been served with a Statutory Demand “requiring the company to pay the sum so due and the company has for 3 weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor”. This is what had happened in this case.

Under s. 125 of the Act, “on hearing a winding-up petition the court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make an interim order, or any other order that it thinks fit”.

The debt claimed was disputed on substantial grounds and this dispute is currently ongoing. The company’s position was therefore that it was not appropriate to make a winding-up order at this stage as it was able to pay its debts; the debt had simply not been paid because the company disputed that it was due.

It was of particular importance in this case that the petition was dismissed rather than the case being adjourned, because the company was in the process of securing finance for a development project. The lender would not release the funds whilst there was an outstanding petition registered against the company and the matter needed to be dealt with urgently as there was a very limited time for which the lender was willing to keep the funds available for the company.

After negotiations with the creditor we were able to persuade them to agree to the dismissal of the petition at this stage. However, the lender required evidence that the petition had actually been dismissed by an order of the Court, their reasoning being that even if the parties had signed a consent order, the Court could for whatever reason decline to endorse it.

We made an application to the County Court dealing with the petition for the consent order that had been agreed to be approved. However, in light of the current pandemic Courts are working at limited capacity and prioritising cases that they consider to be urgent. The Court was therefore unable to confirm whether they would be in a position to seal the order before the lender’s deadline. We were therefore required to make an urgent application to the High Court for the case to be transferred up to that Court and for an order to be made in the terms that had been agreed. Counsel was instructed to proceed with this on a Friday afternoon, the following Monday we were advised that the order had been approved by an Insolvency and Companies Court Judge and we had the sealed order the following day. This enabled the company to proceed with its funding.

We are able to advise on insolvency procedures for both companies and individuals, whether you are a creditor looking to recover monies owed to you or a debtor who is being pursued. Please contact Peter Hastings or myself (Elizabeth Gibson) in the Dispute Resolution team at Rogers & Norton for further information.

Litigation Team Success for Irish Company against UK Border Force

The Rogers & Norton HMRC and UK Border Force Litigation team were delighted to help with the restoration of goods worth more than one hundred thousand pounds for a company exporting goods via the UK to Eastern Europe.

The items were seized shortly after Christmas and created significant consequences for the company at a challenging time of year to find a solution to the problems they had with HMRC. The goods were destined for companies in Eastern Europe and unless restored, meant that our client would be in breach of contract should it not fulfil the order, with a risk to the company’s future We secured the restoration on making a detailed submission at Review.

Our specialist team that deal with HM Revenue and Customs (HMRC) claims, in particular relating to the detention of goods, seizure of goods, understood the need to react quickly to get the goods restored, as the effect on cash flow together with the potential impact on jobs, would be problematic for any company.

We are currently pursuing a claim for damages for the unlawful seizure of goods, with the damages exceeding £1,000,000 and also challenging numerous seizures, assessments of Duty and VAT and requests for security payments. We have a wide experience in dealing with detentions, stoppages and the seizure of goods by UK Border Force.

The team deals with the worldwide importation of goods to the UK, including the huge market from China, Europe, America and Mexico. We work with clients who want goods restored at all major ports of entry, such as Felixstowe and London Gateway, together with Stansted, Gatwick & Heathrow.

We are experienced in Magistrates Court proceedings; First Tier Tax Tribunal; Court of Appeal; European Convention on Human Rights; Administrative Court and Injunctions and can assist with Tax, Coding and Duty and Vat claims and issues.

Busy construction team

It’s been a busy few months for the construction team despite Lockdown.

We have yet another example of how vitally important the use of a Pay Less notice is in the building industry, having recovered a substantial sum of money for a contractor and also succeeding for a sub-contractor as the main contractor had failed to issue a valid Pay Less Notice pursuant to Section 111 Housing Grants, Construction and Regeneration Act 1996 due to one not being served.

We are currently acting on the recovering of a final contract on a 4 year project with a build cost of £12,500,000 and on a dispute over a defective roof for a shopping complex. In addition, we are dealing with various claims for breaches of contract in relation to design and naturally advising on delays arising from Covid 19 and Force Majeure and Frustration issues.

Our skilled and experienced Litigation team have a wide depth of knowledge relating to the construction industry – if you are experiencing issues with enforcing a contract or any construction and building claims, you can contact us on 01603 675639 or at ph@rogers-norton.co.uk.

We are also experience in drafting and advising on construction contracts including JCT contracts, and also Adjudication, Arbitration, Mediation and Expert Determination.

Success for Rogers and Norton’s Contentious Probate Team

22nd Jun 2020

It is sad that a dispute can arise following the death of a loved one. We are handling increasing levels of litigation in this area.

A recent case saw our clients, brothers of the deceased, subjected to a claim for the entire estate by a party who alleged that she was a long term partner and that she and the deceased planned to marry. It was her case that she was left without reasonable financial provision from what was a sizeable estate.

On this occasion the contentious probate team were able to defeat the claim under The Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act“), and having scrutinised the evidence including bank records and social media postings.

Rogers & Norton’s contentious probate team have the knowledge and expertise to handle disputes of all levels and size. They combine the skills and talents of the private client team with the experience of the litigation team, to ensure the client achieves the best expert advice and outcome.