Suing the right entity is often a dilemma, particularly for our non-legally trained users.
Money Claim Online is a huge help in getting claims issued but sometimes it can leave a creditor with an unhappy outcome from suing the wrong legal person when it comes to using a Writ of Control to enforce payment.
This enables the Shergroup TEAM to review the judgment and advise on any adjustments that need to be made, as well as checking the name of the Judgment Debtor before launching into the transfer process for a Writ of Control to be issued.
The “Trading As” Alarm Bell
As soon as we see the words “trading as” or “t/a” next to the name of the Judgment Debtor we know that the name of the business has to be checked to ensure the right person has been sued. In reality, this check needs to be made BEFORE legal proceedings are issued. When it comes to us as High Court Enforcement Officers it can sometimes mean the wrong legal person has been sued and a new claim has to be issued.
So, to avoid that happening let’s look at some examples of when an alarm bell should be ringing.
Examples might look like this
Fred Bloggs trading as Bloggs Builders
Fred Bloggs trading as Bloggs Builders & Partners
Bloggs Builders Limited trading as BLOGGS
In all three of these situations, we need to find out who is the customer and what is the Debtor’s legal personality so we get our claim form right, and our Writ of Control is against the right legal person at the best address where goods can be taken into legal control.
So, in 1) Fred Bloggs is carrying on his business as a sole trader with the business name of Bloggs Builders so the claim form should be fine as that.
Ideally, you will find out BEFORE you start to trade with a business its correct legal personality. Again, we can help you with this through our sister law firm – Shergroup Legal.
In 2) Fred Bloggs is trading with his partners in Bloggs Builders & Partners. In this situation, it is a good idea to capture all the names of the partners in your claim form so those names become people that can be enforced against at their home addresses. Lists of partners will often be given quite freely when a trade account is opened up or you ask your new customer to fill in a customer application form.
For 3) this means Fred is not trading in a personal capacity – he is trading through his company and enforcement will have to take place at the address(es) where the company carries on its business, including Fred’s home address if he runs his business from home, along with other BLOGGS trading addresses.
Review Before You Sue
When you are on the verge of issuing your claim, Shergroup has a number of tools to help you get the name right on your Claim Form. This in turn means the right name is on any subsequent Writ of Control so its best to check who you want to sue.
We can help you check your paperwork and even manage the claim for you for a small, fixed price fee.
Suing the right person in law can be tricky and lead to people trying to evade payment in the enforcement process. So, it’s worth spending time reviewing your process to ensure you always have the best possible information about your customer.