Mayo Solicitors - Debt Collection, Insolvency & Injunctions.

 

 

For any business a key element in the profitability equation is the prompt collection of cash due. Bad debts can be the undoing of new or established businesses. In many instances this can be achieved by a timely demand letter, or dialogue with the debtor by experienced personnel.

If this fails, an agreed escalation process leading to legal proceedings if necessary, should be in place.

Legal proceedings should be the last course of action once sensible pre-legal avenues have been explored. Prior to embarking on the full legal process, certain crucial matters should be considered, such as the likelihood of success and whether, or not, the case will be contested. Each of these factors will have an impact on the length of time it takes to resolve the matter and the extent of the costs involved.

Mary McGregor has many years of experience working in the debt recovery and insolvency department of one of Ireland's specialist debt collection firms.  The options available to creditors are set out below.  If you want to discuss these options, please call us.  We will be happy to talk you through the procedures and to advise you how best to proceed.

The Irish Courts

The Irish Courts are structured on a hierarchical basis and each has a process that must be adhered to throughout the course of the action. The processes involved for each of the main Irish courts are outlined below:

1. District Court (debts up to €6350).

There are District Courts in most Irish medium or large towns

Not defended

1. Civil Summons served on debtor 

  • official notice from the creditor of the nature of the claim
  • debtor does not respond

2. Affidavit of debt sworn by creditor

  • no Court hearing takes place so creditor swears the amount of the debt now due

3. Affidavit, Decree & Memorandum

  • filed in Court office

4. Judgment

  • should be issued to creditor within 20 - 60 days

Defended

1. Civil Summons served on debtor

  • debtor does respond (see below 2)



2Notice of Intention to Defend

  • submitted by debtor
  • date of court hearing fixed


3. Creditor and debtor put their cases to the judge orally under oath 


4. If successful, the creditor will receive a judgement within 10 - 13 days after the hearing

2. Circuit Court (Debts between €6350 and €38, 092).

There is a Circuit Court in every Irish county

Uncontested

Similar to the District Court process.

That is, if uncontested, no Court hearing takes place and a judgement issues on receipt of Affidavit of Debt in the Court office, sworn by the creditor

Contested

1. Civil Bill served on debtor

  • debtor does respond (see below 2)

2. Appearance submitted by Debtor

  • debtor acknowledges intention to contest the claim and a written 'Defence' should be registered in the Court office
  • Court often allows delay to allow time for the creditor or debtor to prepare their case

3. Notice of Trial

  • served by creditor, after receipt of debtor's Defence, advising date of Court which can be 2-5 months away, depending on court scheduling

4. Court hearing

  • creditor and debtor both make their case (orally under oath to the judge and judgement will issue if successful 

3. High Court (Debts greater than €38,092) The High Court is based in Dublin

Uncontested 

1.
 Summary Summons is served by person(s) or by ordinary post to the registered office of a limited company 

If uncontested, no court hearing takes place and a judgment, or Fifa, issues in the same way as from the lesser courts

Contested

1.
 Summary Sumons is served by personal service on a person(s) or by ordinary post to the registered office of a limited company

  • debtor does respond by entering an appearance

2. The creditor must apply for judgment to the master of the High Court by way of a Motion. The creditor and the debtor make their cases by Affidavit and the master may decide in favour of either. Alternatively, he may refer all or part of the claim to a High Court judge for hearing. This hearing may be on Affidavit again, or by way of a full trial with oral evidence

 

Interest

Interest can be claimed at the contract rate in any proceedings. However, where there is no contractual provision, the Court may award interest at its discretion. Also, for business to business contracts entered into after the 8th August, 2002, EU regulations now allow for interest to be charged on all late payments (after 30 days have lapsed) at a rate of interest linked to the European Central Bank (ECB) base rate. After judgment is awarded, interest is automatically applied to the judgment debt at the statutory rate, which is currently 8%.

Costs
Costs awarded to creditors vary depending on the amount due and the Court. They are generally low, unless the case is defended.

 

Post Judgment Options

Publication


To bring a judgment to the attention of the public at large it must be published. Judgments, once registered, are published in the Experian All Ireland Gazette, Stubbs Gazette and various commercial databases. These gazettes are widely read by bank managers, credit controllers, finance houses, etc.

The Sheriff

Each county in Ireland has a Sheriff who is a civil servant and whose responsibility is to seize and sell goods belonging to debtors in the discharge of debt. There can be long delays in this process and often the Sheriff can decide that the debtor has no goods worth seizing and selling. The Sheriff will NOT seize the tools of trade, or essential household items.

Instalment Order Process
(only applicable to individuals and not companies) 

After judgment has been obtained in Court the relevant debtor can be called to attend at the District Court to be examined as to his/her means. The judge will decide the level of weekly/monthly debt payments the debtor can make and will usually make an Instalment Order directing the debtor to make the repayments. The repayments will commence once the order is served on the debtor. It is unusual for a District Court judge to give an Instalment Order against an unemployed debtor. 

If the debtor does NOT make the repayments the creditor can go back to the District Court and seek to have the debtor committed to prison for non-payment (by Committal Order).

Garnishee

A Garnishee Order is an effective legal enforcement option, although this is dependent on the creditor having good information on any monies due, but not yet paid, to the debtor. In such circumstances, the creditor can apply to Court for a Garnishee Order, ordering such monies be paid by the third party directly to the creditor.

It is vital that the third parties are advised of the Garnishee Order before the monies are paid to the debtor.

Receivership by way of Equitable Execution

This is a similar to the garnishee procedure and is usually applied for as an alternative to a garnishee order at the same time. Under certain circumstances the Court may prefer to appoint a Receiver, such as a solicitor, where the creditor is uncertain as to the sum of money that the debtor expects to receive.

Judgment Mortgage

Once the judgment has been obtained, the creditor can apply in Court to have a Judgment Mortgage registered against the debtor's property. This effectively prohibits any dealings with that property, unless the relevant debt is paid off by the debtor. This is presently a useful enforcement option. Many debtors have liquidity problems, and only property assets the judgement mortgage can remain in place for 12 years, and many creditors are opting to register their judgement as a mortgage, in the belief that property prices will improve in time

The creditor can take a further step and have the relevant property sold, so that the debt is .discharged, by applying to the court for a Well Charging Order and Order for Sale of the property. 

Winding up of a Limited Company 

 One of the options available to a creditor against a limited liability company is to apply to the High Court to wind up the company.  The process is commenced by serving a 21 day statutory demand at the registered office of the company.  If payment is not forthcoming, the creditor is entitled to present a petition to the High Court to appointed liquidator to the company.  The procedure involves Notice of the Petition being published in 2 national daily newspapers, and the consequences for the debtor if this occurs is very serious. The proceedings are quick and effective. However, the procedure is not available if the debt is in dispute.  Therefore, although it is not strictly required, it is advisable to obtain a judgement before commencing the procedure, or at least to have some acknowledgement of the debt by the debtor.

Mareva Injunction

If a creditor believes that a debtor intends to reduce his assets to avoid his obligations to his creditors, the creditor may apply to the court, prior to judgement being obtained for a Mareva Injunction. Mareva injunction prevents the debtor from reducing his assets below a certain level pending judgement.  Sometimes the order can relate to a specific asset. 


Bankruptcy

A creditor can seek to bankrupt an individual without a judgment from the Courts, but in practice most bankruptcy actions are taken where a judgment has been granted and returned  by the Sheriff marked "No Goods"

Bankruptcy proceedings must be brought in the High Court and must involve debts over €1,905. Unlike the procedure in other Jurisdictions, bankruptcy proceedings in Ireland can be very expensive, and lengthy process (In Ireland Bankruptcy lasts 12 years unless the bankrupts debts are discharged sooner, although new legislation is expected that would reduce the term of the bankruptcy substantially.)  In recent years, some debtors are opting for a voluntary bankruptcy in other jurisdictions.