Small claims court with a joiner - what can I hope for?

user1977

Skag said:

Ectophile said:

Skag said:

Ectophile said:

Skag said:

user1977 said:

Skag said:

user1977 said:

Skag said:

user1977 said:

Skag said:

I sued his Ltd co, which I know holds items such as saws, vans etc. 

How do you know this?

He told me that he had bought saws and equipment, and also have seen his van.

None of which necessarily means that the company owns them.

Ok yes, we can't know for sure.

We're digressing a bit from the original topic though.

Not really - there's little point going to court unless you have a fair idea that the debtor actually has assets which you can get at. So from his perspective, he might consider it wisest to put all his liabilities in the company's name, and keep the main assets in his own name (or as mentioned above, the van may well be on finance so not owned by him at all).

So what would you recommend I do to check whether he has assets in his company ?

You can look up the company's accounts at Companies House https://www.gov.uk/get-information-about-a-company

But I would be very surprised if the company had assets worth £10000.

Why would you be surprised?

Because any money would be much better in his bank account than the company's.  The van will be leased or on finance.  And nothing else would have second-hand values worth much.

But you can't just transfer company's money to your account

Oh yes you can.

I mean, you shouldn't, but if you're running a one-man company, who's going to stop you?

Skag

user1977 said:

Skag said:

Ectophile said:

Skag said:

Ectophile said:

Skag said:

user1977 said:

Skag said:

user1977 said:

Skag said:

user1977 said:

Skag said:

I sued his Ltd co, which I know holds items such as saws, vans etc. 

How do you know this?

He told me that he had bought saws and equipment, and also have seen his van.

None of which necessarily means that the company owns them.

Ok yes, we can't know for sure.

We're digressing a bit from the original topic though.

Not really - there's little point going to court unless you have a fair idea that the debtor actually has assets which you can get at. So from his perspective, he might consider it wisest to put all his liabilities in the company's name, and keep the main assets in his own name (or as mentioned above, the van may well be on finance so not owned by him at all).

So what would you recommend I do to check whether he has assets in his company ?

You can look up the company's accounts at Companies House https://www.gov.uk/get-information-about-a-company

But I would be very surprised if the company had assets worth £10000.

Why would you be surprised?

Because any money would be much better in his bank account than the company's.  The van will be leased or on finance.  And nothing else would have second-hand values worth much.

But you can't just transfer company's money to your account

Oh yes you can.

I mean, you shouldn't, but if you're running a one-man company, who's going to stop you?

Your accountant, HMRC etc, come to do your taxes and do not have a P11D to start with...

Unless you're tax evading, which, if you're stealing people's money, might as well do!

DanDare999

Skag said:

user1977 said:

Skag said:

Ectophile said:

Skag said:

Ectophile said:

Skag said:

user1977 said:

Skag said:

user1977 said:

Skag said:

user1977 said:

Skag said:

I sued his Ltd co, which I know holds items such as saws, vans etc. 

How do you know this?

He told me that he had bought saws and equipment, and also have seen his van.

None of which necessarily means that the company owns them.

Ok yes, we can't know for sure.

We're digressing a bit from the original topic though.

Not really - there's little point going to court unless you have a fair idea that the debtor actually has assets which you can get at. So from his perspective, he might consider it wisest to put all his liabilities in the company's name, and keep the main assets in his own name (or as mentioned above, the van may well be on finance so not owned by him at all).

So what would you recommend I do to check whether he has assets in his company ?

You can look up the company's accounts at Companies House https://www.gov.uk/get-information-about-a-company

But I would be very surprised if the company had assets worth £10000.

Why would you be surprised?

Because any money would be much better in his bank account than the company's.  The van will be leased or on finance.  And nothing else would have second-hand values worth much.

But you can't just transfer company's money to your account

Oh yes you can.

I mean, you shouldn't, but if you're running a one-man company, who's going to stop you?

Your accountant, HMRC etc, come to do your taxes and do not have a P11D to start with...

Unless you're tax evading, which, if you're stealing people's money, might as well do!

His accountant probably won't tell him, they'll almost certainly make him as tax effective as possible. I doubt he's bothered about a bit of tax avoidance given he's taken ten grand from you. 

Most people on this thread have told you how it is, as unjust as they system is it's not going to change any time soon just because there is another victim of a bad companies practices. 

There should be a system, you take on a job and the contract should specify a start date, if that cannot be fulfilled and the customer wants a refund it becomes a criminal offence if they're not repaid within 28 days.  

TripleH

The reality is that if someone has a long history of closing down companies and opening up new ones with all assets shifted over, there is a paper trail of this showing at Companies House.

Fora large job and half an hour of due diligence (if you know what you're doing) you could reduce your exposure to loss quite a bit.

There is a flaw in the system, but likewise there are some safeguards if you can show someone is a repeat offender.

Often HMRC are the biggest looser in uncollected VAT and PAYE debts as I know in some industries in the past, they keep their suppliers happy as they might need them when they setup a phoenix company.

Skag

I thought I'd post an update on this.

I went to court and won the hearing.

I then instructed the bailiffs to go and collect my money. I just received this response from the bailiff.

We have now concluded our pre-enforcement checks on this file and report as follows:

1/ Your judgment is against a none legal entity, see below for an explanation:

What is meant by the defendant is not a legal entity?

Look at the name on your judgment. There are basically three types of legal entity: there is a sole trader i.e., Joe Bloggs trading as XYZ Car Sales, a partnership Joe Bloggs and Simon Smith trading as XYZ Car Sales, and a limited company like XYZ Car Sales Ltd or ABC Ltd trading as XYZ Car Sales. If we get a judgment with just XYZ Car Sales, this is not a legal entity. We will of course attend and try to enforce, but if it is shown to us that XYZ Car Sales is not a correct entity, then we cannot enforce and will walk away because we could be acting unlawfully. We are not allowed by law to give you legal advice as we are not solicitors or legally qualified.

We are aware that the court can vary an order to get the name changed. See  https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13 Exactly how you go about the procedure we cannot explain to you, so you should seek professional legal advice.

Estimated chances of successful enforcement

Based on the above findings we are able to give a very basic indication of successful enforcement, as to if there is a greater or less than 50% chance of successful enforcement. Please note this is purely an estimate and we cannot give any accurate percentages of any case and we cannot answer any further questions on this.  

A less than a 50% chance of successful enforcement.

As there is a less than 50% chance of success, we now ask you to confirm if you would like to progress the case to obtain the writ at your risk of losing the court fee of £71.

It is of course still possible to gain successful enforcement and we are more than willing to continue to attempt to gain the writ and proceed with enforcement.

On the CCJ, on the defendant field it states the name of the company without the Ltd (as it doesn't have an Ltd on his invoice), and on the defendant, it says the director's name.

However, I remember asking the judge whether I should sue the individual, and she said that it doesn't matter, if you had the job done by his company, you should sue his company.

The judicial system is so broken, it's absurd! So, if I were to sue a bottle of water, would the court allow me to, and would issue a CCJ?

eskbanker

Skag said:

On the CCJ, on the defendant field it states the name of the company without the Ltd (as it doesn't have an Ltd on his invoice)

What does the Companies House entry state?

Skag said:

The judicial system is so broken, it's absurd! So, if I were to sue a bottle of water, would the court allow me to, and would issue a CCJ?

You'd have a less than Evian chance of enforcement there too....

Skag

eskbanker said:

Skag said:

On the CCJ, on the defendant field it states the name of the company without the Ltd (as it doesn't have an Ltd on his invoice)

What does the Companies House entry state?

Skag said:

The judicial system is so broken, it's absurd! So, if I were to sue a bottle of water, would the court allow me to, and would issue a CCJ?

You'd have a less than Evian chance of enforcement there too....

It says company_name Ltd. His invoice doesn't have the Ltd part.

In my witness statement I sued "Mr X trading as company_name" (without the Ltd). The judge said it didn't matter because I still sued his company. This is what baffles me: the judge didn't know who am I suing?

Skag

You'd have a less than Evian chance of enforcement there too....

But I can still get a CCJ??? Wow, madness.

eskbanker

Skag said:

eskbanker said:

Skag said:

On the CCJ, on the defendant field it states the name of the company without the Ltd (as it doesn't have an Ltd on his invoice)

What does the Companies House entry state?

It says company_name Ltd. His invoice doesn't have the Ltd part.

The definitive name of a company is that stated at Companies House, not what's printed on an invoice.  

Skag said:

In my witness statement I sued "Mr X trading as company_name" (without the Ltd).

"Mr X trading as company_name" doesn't make sense, as that styling applies to a sole trader, whereas a limited company (even a one-man version) is a different legal entity from an individual, which is a really important distinction.

Skag said:
The judge said it didn't matter because I still sued his company. This is what baffles me: the judge didn't know who am I suing?

I'm not familiar enough with the process to know if there's any validation of entities being sued, but would have thought that it was your responsibility to establish who you're suing, but the above variations suggest that this wasn't clearly done, and potentially left loopholes that the defendant can escape through.  The judge's comment about suing the company not the individual is accurate, and consistent with what you've been told before, but isn't in itself sufficient, in that you still need to get the company name right....

tightauldgit

Skag said:

I thought I'd post an update on this.

I went to court and won the hearing.

I then instructed the bailiffs to go and collect my money. I just received this response from the bailiff.

We have now concluded our pre-enforcement checks on this file and report as follows:

1/ Your judgment is against a none legal entity, see below for an explanation:

What is meant by the defendant is not a legal entity?

Look at the name on your judgment. There are basically three types of legal entity: there is a sole trader i.e., Joe Bloggs trading as XYZ Car Sales, a partnership Joe Bloggs and Simon Smith trading as XYZ Car Sales, and a limited company like XYZ Car Sales Ltd or ABC Ltd trading as XYZ Car Sales. If we get a judgment with just XYZ Car Sales, this is not a legal entity. We will of course attend and try to enforce, but if it is shown to us that XYZ Car Sales is not a correct entity, then we cannot enforce and will walk away because we could be acting unlawfully. We are not allowed by law to give you legal advice as we are not solicitors or legally qualified.

We are aware that the court can vary an order to get the name changed. See  https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13 Exactly how you go about the procedure we cannot explain to you, so you should seek professional legal advice.

Estimated chances of successful enforcement

Based on the above findings we are able to give a very basic indication of successful enforcement, as to if there is a greater or less than 50% chance of successful enforcement. Please note this is purely an estimate and we cannot give any accurate percentages of any case and we cannot answer any further questions on this.  

A less than a 50% chance of successful enforcement.

As there is a less than 50% chance of success, we now ask you to confirm if you would like to progress the case to obtain the writ at your risk of losing the court fee of £71.

It is of course still possible to gain successful enforcement and we are more than willing to continue to attempt to gain the writ and proceed with enforcement.

On the CCJ, on the defendant field it states the name of the company without the Ltd (as it doesn't have an Ltd on his invoice), and on the defendant, it says the director's name.

However, I remember asking the judge whether I should sue the individual, and she said that it doesn't matter, if you had the job done by his company, you should sue his company.

The judicial system is so broken, it's absurd! So, if I were to sue a bottle of water, would the court allow me to, and would issue a CCJ?

Its very important and the responsibility of the person seeking a judgement against an entity that they are pursuing the right entity and that the details are correct. From what you say you have sued the person and not the company. No idea what the judge has told you but 'Mr X trading as XYZ Car Sales' is not the same entity as 'XYZ Car Sales Ltd'. 

Furthermore, I don't think it's as simple as getting an amendment because even if you added the Ltd to 'Mr X trading as XYZ Car Sales' it would still be wrong. I don't think you can get an amendment to change the legal entity only to correct a typo or similar.