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High Court enforcement firm forced to hand back debtor’s payment

18 June 2020

Should creditors be issuing writs now to protect their debt and get to the front of the queue of priority?  

In March 2020, in the case of 365 Business Finance Limited v Bellagio Hospitality WB Ltd that involved both enforcement companies Marston and Court Enforcement Services (CES), Lord Justice Lewison upheld the Judgment made in 2019, which ordered CES to send Marston the money they had collected from a debtor due to priority existing. Marston were entitled to the funds that CES had taken from the debtor as they received their Writ first.  

 Lord Justice Lewison said, “to not allow for priority would permit a disorderly race between enforcement agents, favouring the most aggressive and least forbearing.” He went on to say, “priority in enforcement is thus determined solely by the chronological order in which the Writs are received. It does not depend on the identity of the enforcement officer to whom any of the Writ is directed and whether that officer is the same or different from the officer who receives any earlier or later Writ.”  

He then concluded that para 50(1) of Schedule 12 of the TCE Act imposed a statutory obligation on CES to apply the money obtained from the debtor to pay the amount outstanding under the Marston Writ before any balance could be applied to the amount outstanding under the Writ they held.  

So, what does this mean for enforcement?  

Enforcement agents should make enquiries to ascertain if the debtor is subject to another enforcement action, and if so, they should get in line and wait their turn, or risk sending any money they collect to the enforcement officer who received their Writ first 

Creditors should ensure that if they have more than one Writ for the same debtor, they should send new Writs to the officer as the Writs can then be enforced together and in the order of priority.  

How will this work practically?  

Enforcement companies can control some of their processes internally, like change their letters to allow further questions to be asked. However, other processes are more difficult, such as relying on enforcement agents to ask the right questions whilst at the door.  

Creditors will need to have sufficient data controls that enable them to match Writs with previous ones, and communicate that information to suppliers or send all debts for the same debtor to one supplier.    

What if priority is ignored? 

  • A ‘first past the post’ enforcement process: enforcement companies may be less forbearing in an attempt to get their money first before another enforcement agent turns up with a Writ that was issued before their own. 
  • Higher fees being charged to the debtor: typicalltwice the amount, as two separate enforcement companies need to be paid to do everything twice rather that one to combine the Writs and enforce them at the same time. 
  • Creditor is paid slower: higher fees means longer repayment plans and, in some cases, make it unaffordable.  
  • Risk of financial claims: the money that was collected by one creditor, may be out of the order of priority and as such be subject to a later claim by the other creditor. The creditor who thought they had been repaid could be ordered to pay over the money to the first creditor. 

When Writs are grouped together, the enforcement is cheaper for the debtor to pay, cheaper for the enforcement industry to enforce and returns more of the money collected to the creditor to put towards the principal amount as less enforcement fees are charged.    


Summary  

It makes perfect sense to treat debtors fairly and in line with the law but as demonstrated above, it also benefits the enforcement industry and creditors too.  

At Just we address the priority issue by asking debtors when writing to them to declare any outstanding orders of the Court. As a market integrator, we also hold a centralised register of debtors and ensure that any supplier already holding a Writ gets the second one to enforce to. Suppliers also make the enquiries at the door.  


Just.

Find out more about the enforcement market integration approach we take and read testimonials from some of our customers who are the largest creditors in the UK.  


About the Author: Jamie Waller

Jamie Waller is an entrepreneur, investor, author, and philanthropist. In 2018 he was awarded the prestigious Cranfield Business School, Entrepreneur of the Year and has been responsible for the formation, development, and sale of two previous businesses in the financial services industry.

Jamie is the Chairman of the Arum Group of companies.