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How to recover and pursue a debt through debt recovery based litigation processes and procedures. Frequently asked questions:
How To Pursue Recovery Of A Debt?
When you embark upon a process to recover a debt you may do so to begin with by dealing with a dispute when you are owed the money. Until you have established that you are owed the money you have no chance to recover a debt that is due to you.
A cardinal principle is to ensure that you Keep Company And Accounting Records so that you can deploy that material to evidence the debt that you claim to be owed. If your record-keeping is good, then you should be able to evidence that you are owed the debt with some reasonable expedition and hopefully demonstrate that a dispute has no invalidity.
However, if your record keeping is not so good then you might find yourself locked into litigation dealing with the dispute and engaged in proving that you are owed the debt in the first place. That will put the actual recovery itself on hold until the dispute is disposed of.
Look into the article which explains how to address the question of Winding Up Petition What Next?
What Is Debt Recovery Litigation: How To Recover A Debt?
Debt Recovery Litigation is the route through the Courts to obtain recovery of a debt when other routes have been unsuccessful such that consensual disposal cannot be ascertained. Litigation is therefore the route to such dispute resolution available.
The path down the road of debt recovery litigation can be full of hurdles to vault and other bumps in the road. For someone who has little or no experience of litigation, it is advisable to educate yourself of its likely progression, particularly when the debt is disputed. You might have thought if you issued proceedings you would have swiftly recovered your money, only to then find that you had a curious lengthy wait simply to reach the first hearing of your case.
There are strict rules to comply with set out in the Civil Procedure Rules.
What Can A Litigant Expect From Debt Recovery Litigation?
It is helpful for someone to recognise that litigation is not something that readily reflects normal commercial business trading which flows with alacrity and expedition. Litigation tends to move in comparison glacially and for the less patient, it might even be said to move at molasses like speed. However, even so, a litigant can do little to influence the pace of progression of litigation when timetables are controlled by Court listing availabilities.
It is however advisable to make some mental adjustment as to what you can expect. Firstly, that you have got to be in it to win it and you have got to stay in it notwithstanding the delays, otherwise you are likely to be the one ‘wound up’ and frustrated, long before you Wind Up the company you are hot on the heels in pursuit of.
One thing, however, that a litigant can do is monitor closely the progression of a case. If you have instructed legal agents or professionals to act on your behalf, you can instruct them that you want a case to progress without any undue and avoidable delay at each state of the litigation process. You are likely to have to monitor that position as the months go by and reiterate such an emphasis otherwise it might be overlooked.
You may find that some people who engage in litigation as part and parcel of their professional life, may consider that delays of a few days or weeks as par for the course and something to be accepted. Whilst contrariness may bring about certain issues and problems of its own, keeping close control over those you may have instructed and issuing clear instructions that you do not want any avoidable delay to transpire or go unchallenged might not necessarily win you vote in certain popularity contests but it may reduce the risk that your litigation goes off-piste and dwindles down a road of delays.
How Could I Instruct Legal Advisers?
Once you embark upon litigation you will typically be involved in a long relationship with your legal advisers and therefore it is a situation that may require your skills of diplomacy as the months trickle along. You are unlikely to be their only client and their attention to your case might be affected by events outside of people’s control. But is this your problem? Typically, you will be paying the bill and provided the legal agent adheres to their paramount duty to the Court, then you hopefully will be able to demand and anticipate the level of service to which you are accustomed and should reasonably require and moreover that which you supply when you are the one providing a product and or service.
What Is The Directions Hearing?
To many, it might seem remarkable that after waiting for instance a few months for an initial Directions Hearing that it could really take so many months to plead a case, deal with disclosure, and exchange evidence when in most and in some cases, all material facts are known to the parties and the information is often at people’s fingertips. How can it take so long?
That is potentially the wrong question because a final hearing via a Trial of the evidence is considered as a matter of public policy to be something of a last resort. Unfortunately, you have to grin and bear it and then get on with it. That is how the legal system has been mapped out to be fair to all the parties. In your case, you may well be a hundred percent in the right that you have suffered an injustice but there are other cases in which people have been pursued wrongly and unjustifiably. The Court system needs to be fair to both sides.
If you have taken legal advice from parties authorised to engage in litigation and you were told that your case had been listed for Directions and that the hearing was three or more months away, you need to be prepared for the prospect that nothing at all may happen during this period.
The party from whom you are attempting to recover a debt may decide to do nothing and await the Directions hearing before engaging substantively in the process.
At that hearing, the Court will set a general timescale for completion of various stages of the litigation process such as the pleadings, disclosure of documents held by each of the parties, exchange of witness statements, and perhaps in more complex cases, directions for expert evidence.
What Are The Pleadings?
The Pleadings or as sometimes known, the Particulars Of Claim and are the documents, typically drafted by a barrister that plead out the case so that your opposing party knows the case that they have to meet. For the Claimant seeking to recover a debt, the pleadings will typically be known as Points of Claim. Points Of Claim will set out the key points that a litigant says that point out the case against the Defendant ie. the facts that the Claimant asserts to have happened and sketch out the evidential foundation upon which those facts are based. In addition, Points Of Claim will also set out the rationale as to why from a legal perspective the Claimant says that it ought to obtain from the Court the order sought to recover a debt.
In respect to the Defendant, they will set out their pleadings in what is known as Points Of Reply and explain what facts and legal points are disputed.
Once the case has been mapped out in the pleadings it will typically move onto the disclosure stage.
What Is Disclosure?
Disclosure is a common stage in litigation where the parties provide lists of documents that is evidence relevant to the issues in the case. It is a requirement that each side must (subject to whichever disclosure model is being adopted and agreed to) provide a list of relevant documents that both help and also may hinder their case.
It is vitally important that this principle is adhered to otherwise there can be very serious consequences arising from potentially misleading the Court, including but not limited to the risk of being held to be in contempt of Court and subsequently imprisoned.
One point that many people who have never been down the road of litigation may overlook is how easy it can be to trip up if you have broken the rules earlier. It is important to recognise that when you go into the Witness Box to be cross-examined by the other side’s barrister on the contents of your Witness Statements, you risk having your every word and statement dissected and put under the microscope. It is not easy (nor should it be or indeed happen at all) for someone to outflank the system. If you make mistakes hold up your hands and acknowledge them but do not try to pull the wool over the Court’s eyes and wriggle out of an admission of a mistake as you are likely to dig a hole for yourself and risk damaging your credibility in the eyes of the Court. This could seriously adversely affect the prospects of your case. Judges tend to pay careful attention to Witness credibility when determining cases. It is often a key feature in a judge’s judgment.
The reason that this is relevant for disclosure is that when a party considers which documents to highlight for disclosure, it is possible someone might be inclined to consider not disclosing documents that might be either embarrassing or which could even hurt their case. It is critical that you do not do this a) because it is unlawful and b) because you will likely be found out. Although litigation does not always end up with the right result, otherwise no appeals would ever succeed, one thing that it does tend to sprout and become exposed is a witness who is economical with the truth or at worst dishonest.
What Is Exchange Of Witness Statements?
This is the stage that typically arises after disclosure in which the witnesses provide their own evidence of the facts that they seek to put forward and rely upon to prove their case. Expert evidence may also be required as well later on if a case is particularly complicated and the Court is likely to need the assistance of an Expert’s opinion on a matter that is in dispute between the parties.
What Is A Case Management Hearing Or Pre Trial Review?
A Case Management hearing or as it might be known, Pre Trial Review, will be held much later on, typically as part of the run-up to Trial.
It is the point at which the parties will either agree that the case is ready to be ‘tried’ by a judge at a final hearing known as the Trial or there is still more to be done before that can take place. However, at some point, the matter will be listed for Trial thereafter.
What Is The Trial Of The Evidence?
A Trial of the evidence is a final hearing of a case in which the case is put before the Court by the advocates (the barristers). Typically, there might be some opening statement but then the critical pyrotechnics will start going off when the barristers who will start to take their opposing witnesses through their Witness Statement evidence and look to see how they withstand the storms that cross-examination might produce. Whether the opposing barrister that you are being asked the questions by is a Queen’s Counsel or someone more junior, a witness ought to be prepared for the fact that you are likely to be scrutinised potentially by some of the most well-educated of forensic legal operators.
Do not underestimate what you might be walking into if it is your first time in the Witness Box. There are few experiences quite like it. All eyes in the Courtroom will be firmly fixed on you, hanging onto every single syllable that you utter.
Cross-examination can be very stressful and traumatic for witnesses and in some instances sadly it can even be considered somewhat brutal. However, it serves its purpose in adversarial proceedings to seek to unscramble the facts as best as might be possible on the balance of probabilities. Many European countries have an inquisitional system that is not adversarial as in the UK. Whilst no system is perfect and has its flaw, it is an adversarial system that you have to grapple with here.
Once cross-examination is over then the barristers having deployed their black-belted martial arts, no doubt with the courtesy and undoubted refinement demanded of them by their professional standards and by the Court, will finish off with some legal finessing with what is referred to as the Submissions. This is when that little thing known as the law creeps back into the Courtroom, that might have long been forgotten about whilst the Witness testimony is dissected. For those litigants who hang around for it, you might witness an advocate being put to some scrutiny by the judge if he or she feels that their case is coming apart at the seams.
What Is Judgment Being Handed Down?
Once you have finished the Trial if your case is simple enough you might be lucky to get an oral judgment during the last day. For many cases, however, where matters are more complicated you can expect to have to hang around a few more weeks before a written judgment is handed down.
If you have won congratulations. If you have lost commiserations. However, just one thing, it is just a piece of paper but – it does not have to be that way.
It is the rights that flow from it that is what is at stake.
How Do I Seek Enforcement Of Judgment?
Enforcement of judgment when it goes unpaid is what how to recover a debt is all about and will likely have brought you to the position that you are at now following the Winding Up Petition and Winding Up Order.
Look into the article which explains how to address the question of Winding Up Petition – What Next?
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Disclaimer: How To Recover A Debt
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