Supplementary
Debt Recovery Funding Solutions
1. No Win, No Fee Debt Recovery
It may be appropriate to look to recover the debt on a no win, no fee basis. However, proceeding with a no win, no fee agreement is to be determined on the specific circumstances regarding the debt (or debts) owed and the debtor (or debtors).2. Fixed Fee Debt Recovery
Our fixed fee debt recovery service is both cost-effective and efficient. Under this arrangement, we provide a fixed fee based on the value of the debt you are seeking to recover. The debt recovery process occurs in 3 distinct stages. A fixed fee exists for each stage, starting at just £55 + VAT. The stages are as follows:Stage 1: We will provide a solicitor's letter to your debtor to threaten county court or insolvency proceedings,
Stage 2: We will issue a county court claim or statutory demand against your debtor
Stage 3: At this stage enforcement action will be taken by way of enforcing any Judgment obtained or progressing insolvency proceedings.
Anyone wishing to proceed with a claim should note that:
- The VAT element of our fee may not be recoverable from your debtor if you can recover it through your VAT returns.
- Interest and compensation may take the debt into a higher banding, with a higher cost.
Stage 1
At this stage, one of our experienced debt recovery lawyers will write to your debtor demanding immediate payment of the debt owed to you, warning your debtor that county court or insolvency proceedings will consequently be advanced if they do not provide payment. If the debtor has not aknowledged the solicitor's letter, and you have not received payment within 7 days, your designated solicitor will call the debtor to affirm the letter and demand immediate payment.The fixed-fee bands for stage 1 are as follows:
| Debt Owed | Our Fee |
|---|---|
| < £1,000 | £125 + VAT |
| £1,000 - £10,000 | £200+ VAT |
| £10,000 and over | £250 + VAT |
Compensation Recovery
The late payment of a debt you are owed entitles you to recover compensation from the debtor, under the Late Payment of Commercial Debts (Interest) Act 1998. At Curzon Green, we will not only seek to recover the debt owed to you by the debtor but also the recovery of compensation for the delay in paying any outstanding debts by the debtor. It is important to note that such can only be recovered where the debtor is a business. The amount of recoverable compensation is determined by the amount you are owed and the quantity of outstanding debts.
Upon successful recovery of compensation which exceeds the legal fees payable to Curzon Green for our debt recovery service, the compensation recovered will be the amount of your legal fees. If the compensation recovered does not meet your legal fees entirely, you will be required to pay the remaining amount.
Stage 2
At this stage, following no payment being made to you by your debtor, it will be necessary to issue a county court claim or statutory demand against your debtor.Under our fixed fee debt recovery service, we will issue a county court claim against the debtor. The debtor will be notified by the court that action has been taken against them and that they must respond to the court or settle the debt within 14 days. Failure to respond to the court or settle the claim will result in our request to the court that a Judgment be entered against the debtor. At this stage, the debtor will receive a letter informing them of a court judgment and demanding that the outstanding debt be paid immediately to avoid enforcement action.
It may also be possible, at this stage, to recover court fees and a fixed amount towards your legal costs as well as potentially recovering compensation from the debtor. The amounts recoverable are specified in the table below. If a judgment is made against the debtor and the debt is consequently neither settled or disputed, we will discuss with you the best course of enforcement action to take, advancing your debt recovery claim to stage 3, commencing enforcement action through formal legal proceedings.
| Debt Owed | Our Fee | Court Fee | Recoverable from Debtor (Court Fee + Fixed Costs) |
|---|---|---|---|
| <£1,000 | £110 + VAT | £25 - £60 | £75 - £130 |
| £1,000 - £10,000 | £175 + VAT | £70 - £410 | £150 - £510 |
| £10,000 - £100,000 | £275 + VAT | 5% of claim value | Court Fee + £100 |
| £100,000 - £200,000 | £350 + VAT | 5% of claim value | Court Fee +100 |
Alternatively:
Curzon Green can issue a statutorty demand to the debtor threatening formal insolvency proceedings should the debtor fail to make payment. For proceedings against a company, an application would be made to the court for the company to be wound up. For proceedings brought against an individual, we will petition for their bankruptcy. This option is only available where a debt owed by a company exceeds £750, and a debt owed by an individual exceeds £5,000.
The cost of issuing a statutory demand is determined by the amount you are owed (see below). Our fee is fixed and no commission is payable upon the amount recovered. If the debtor ignores the statutory demand or fails to settle the debt within 21 days, we will discuss with you the potential commencement of insolvency proceedings and offer an estimate of costs.
| Debt Owed | Our Fee |
|---|---|
| £750 - £10,000 | £250 + VAT* |
| £10,000 and over | £300 + VAT* |
Stage 3
At this stage, following a lack of compliance from the debtor at stages 1 and 2, we will commence enforcement proceedings. This usually requires instructing a HIgh Court Enforcement Officer (Bailiff), who will seize personal property owned by the debtor, intending to sell them should the debtor fail to make payment. Alternatively, we can apply for a charge against any property owned by the debtor, thus securing your interest, which would enable you to seek payment of your debt from the proceeds of sale when the property is sold. Once a charge exists, you may consider applying to court for an order that the property is sold.There are several alternative enforcement methods about which your debt recovery lawyer will advise you to ensure the most appropriate and cost effective method is advanced. If further information about the debtor's financial circumstances is required, you can apply to the court for an order that the debtor attends for questioning. Our fees and other fees associated with different enforcement action are detailed below.
| Enforcement Action | Our Fee | Court Fee |
|---|---|---|
| Application for order that the debtor attends court for questioning | £100 + VAT | Court fee of £55 + process server's fee (£60 - £99 approximately) |
| Application for Writ of control - High Court Bailiff (where debt exceeds £600) | £100 + VAT | If unsuccessful: £66 Court fee (Court + bailiff's fee recoverable from debtor) |
| Application for an Attachment of Earnings order | £100 + VAT | Court fee of £110 |
| Application for Third Party Debt Order | £100 + VAT |
Court fee of £110 Representation at court - estimated at £300 |
| Application for Charging Order on Debtor's Property | Charged based on an hourly rate basis (we will provide an estimate based on the circumstances of the debt owed) |
Court fee of £110 Land Registry fee of £40 Representation at court -estimated at £300 |
Finally, we caution again that normally a debt has not been paid because (1) it is disputed, or (2) the debtor is struggling to pay. We therefore generally advise that all the circumstances be considered before commencing a form of debt recovery to anticipate whether it is likely to lead to litigation or an insolvency procedure. Our team will provide a no obligation free discussion.
Discrimination Claims
Discrimination is usually unlawful if the reason for the discrimination is one of the following 9 protected characteristics:
- Age.
- Disability.
- Gender Reassignment.
- Marriage and Civil Partnership.
- Pregnancy and Maternity.
- Race.
- Religion or belief.
- Sex.
- Sexual Orientation.
We care and we succeed, as demonstrated by our reviews and reputation. Whatever you are up against, we are on your side. As a firm of solicitors we are bound by a strict duty of confidentiality.
We are able to work on a plethora of innovative funding solutions.
Please contact us today for a free no obligation consultation by calling either our London or High Wycombe offices on the telephone numbers referred to at the top of this page, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Our Dispute Resolution Team
Escalating Ground Rent Clauses
It is usual for a property lease to contain a provision enabling the freeholder (also known as the landlord) to review and amend the ground rent after a certain period of time. The increase may be expressly set out in the lease, for example as a percentage, or by reference to an inflation-measuring index.
However, an increasing number of leases now contain review clauses that provide for an automatic doubling of the ground rent, in some cases as often as every ten years. This has been especially prevalent among some property developers, who have been routinely selling new-build houses as leaseholds rather than freeholds, and inserting an escalating ground rent clause into the leases. Once the development is finished, the freehold is then sold to a property investor who receives the ground rent every year and is not obliged to maintain any common areas on the development.
What is the problem?At first glance an escalating ground rent clause may not appear to be a problem; it is reasonable to expect that rents will increase to avoid the freeholder losing out from the effects of inflation. However, over the lifetime of a 150-year lease with the ground rent doubling every 10 years, by the end of the lease the ground rent will have escalated from the original by some 819,200%. In real terms, such a lease with a starting ground rent of £200 per year would finish with a rent of £3,276,800 per year.
Increased awareness of the damaging potential of these clauses has meant that they are frequently a problem for prospective purchasers of leasehold properties. A leasehold interest in a property inherently loses value over time as the remaining term of the lease reduces; a 100-year lease will always be more valuable than a 50-year lease of the same property on the same terms. When combined with an escalating ground rent clause, these properties can become unattractive to potential buyers.
Mortgage lenders have also become increasingly wary of these clauses, with many refusing to lend on properties with rent review clauses that they consider to be onerous.
What are my options?Unfortunately, many leaseholders who have an escalating ground rent clause in their lease are not aware of the existence of the clause until they attempt to sell their property or extend their lease.
Some cases, landlords may agree to new, less onerous rent review clauses either as part of a lease extension or by way of a Deed of Variation to an existing lease. Our conveyancing solicitors are able to assist with both of these matters. However, these negotiations are not guaranteed to be straightforward, and in some cases unscrupulous freeholders have attempted to increase the rate at which the ground rent increases rather than accepting reduced terms. Negotiating a variation of a lease as part of a sale transaction is also likely to incur delays for the whole chain.
It is the responsibility of a conveyancer to fully explain the implications of the terms of a lease and other title documentation to their client when acting on a purchase. Failure to do so may constitute a breach of the solicitor’s duty of care, and is likely to give rise to a claim in professional negligence. Our solicitors have experience of such claims against other legal professionals, and our expertise in conveyancing gives us the necessary understanding of how you should have been advised when making the original purchase. It is important to note that limitation is often an issue in these claims; generally speaking, claims against solicitors must be brought within six years of the conclusion of your matter (known as the limitation period). It is therefore in your interests to bring a claim as soon as possible.
If you believe that your lease has an onerous escalating ground rent clause and you were not properly advised of this at the time of purchasing your property, please contact us today for a free no obligation consultation by calling either our London or High Wycombe offices on the telephone numbers referred to at the top of this page, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.. We will always get back to you.
Our Dispute Resolution Team
Mediation and Alternative Dispute Resolution (ADR)
Mediation is available to parties either before or during court proceedings and has become increasingly popular in recent years, with the courts increasingly trying to encourage parties to try mediation before matters are heard before the court.
Mediation operates by the parties jointly appointing a professional and impartial mediator who meets with the parties and explores the possibility of settlement. The mediator cannot advise the parties on points of law but will aim to facilitate discussion between the parties towards resolving the dispute. The mediator does not reach a final outcome for the parties so the parties are able to agree any outcome they consider appropriate for their dispute. The results of mediation are non-binding but will often be written up as a comprise agreement.
The key benefits of mediation are as follows:
- Not subject to legal rules
- Not subject to determination by legal procedures
- Not subject appeal on point of law unlike arbitration
- The term of the mediation are set by the parties
- Outcome determined by parties themselves and not mediator unlike arbitration
Our solicitors have significant experience in all aspects of construction, particularly in disputes. We regularly act for clients in adjudication, arbitration, court litigation and mediations, and are often prepared to act on a no win, no fee basis.
Please contact us today for a free no-obligation telephone discussion by calling us on one of the two telephone numbers at the top of this page, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Arbitration
Arbitration is an alternative to court proceedings which aims to find a final binding award usually in favour of one of the parties. Arbitration is based on the parties agreement: all parties must agree to submit the dispute in question to arbitration.
An arbitrator conducts the arbitration and will be an individual with professional expertise in assisting in the resolution of disputes. An arbitrator can be appointed by agreement between the parties or by an independent nominating body. The arbitrator will make a decision at the end of the arbitration like a judgement, which is final and enforceable.
The arbitrator will conduct the arbitration in a fair and impartial manner, obtaining position statements and evidence from the parties and will hold hearings to review the parties positions. Arbitration is conducted according to the agreed rules of the Arbitration Act 1996, and the outcome of the arbitration can be appealed on a point of law to the courts.
The main benefit of arbitration is the flexibility it provides the parties, as it is not governed by rules of procedures so it can be much less formal than court proceedings. If the parties desire, the arbitrator can recommend solutions to the parties instead of making a final decision. Arbitration is also more flexible for the parties than court procedures in that they usually choose where the arbitration is to take place and the parties can also choose their own rules to govern the procedure of the arbitration.
Our solicitors have significant experience in all aspects of construction, particularly in disputes. We regularly act for clients in adjudication, arbitration, court litigation and mediations, and are often prepared to act on a no win, no fee basis.
Please contact us today for a free no-obligation telephone discussion by calling us on one of the two telephone numbers at the top of this page, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Adjudication
Adjudication provides a quick and inexpensive solution to many disputes arising under a construction contract. It is designed to produce a remedy during the process of a construction project to avoid the problem of long court litigation, which many sub-contractors and small construction companies are unable to afford.
Adjudication is appropriate for resolving financial disputes relating to delay and disruption claims, extension of time claims, final accounts disputes and can be particularly helpful in sorting out disputes on interim applications. Although it has been available since 1998, many contractors still have not taken advantage of the benefits offered by the adjudication procedure.
The legal right to adjudicate is a right that the parties cannot contract out of. A party to a construction contract has the right to refer a dispute to adjudication at any time. The Adjudicators decisions are also binding on the parties until the dispute is finally determined by legal proceedings, by arbitration or by agreement.
There are many benefits of adjudication:
- Quick– disputes are resolved in 6-8 weeks of the appointment of an adjudicator
- Inexpensive– adjudication is far less costly than either court proceedings or arbitration proceeding
- Less risky than arbitration or court – unless the parties have agreed otherwise, each party nears its own costs in adjudication and the losing party cannot be ordered to pay the winners costs
- It does not bring the contract to an end– work will continue on the contract whilst the adjudication proceeds so that the sub contractor is not going to lose the opportunity of completing the contract simply because he has asked an adjudicator to resolve a dispute
- Flexibility – the scope of arbitration has extended beyond payment disputes arising during the course of the project, to include disputes relating to breach of contract and termination issues often arising after completion
It must be borne in mind that the costs of adjudication cannot be recovered from their opponent even if the adjudication is successful.
Our solicitors have significant experience in all aspects of construction, particularly in disputes. We regularly act for clients in adjudication, arbitration, court litigation and mediations, and are often prepared to act on a no win, no fee basis.
Please contact us today for a free no-obligation telephone discussion by calling us on one of the two telephone numbers at the top of this page, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Our Dispute Resolution Team
Dilapidations
Our lawyers can advise Landlords upon the terms of the lease to establish whether there is a dilapidations issue in respect of which action can be taken against a tenant.
Likewise, they can advise tenants upon the validity of any claims brought against them.
If it appears that there is a dilapidations dispute our lawyers will advise you in taking the appropriate action in accordance with the requirements of the ‘Dilapidations Protocol’.
The first step is the preparation of a Schedule of Dilapidations by a suitably qualified professional (usually a surveyor). This records the alleged breaches of covenant and identifies appropriate remedies which ultimately could form the basis of legal proceedings if the parties are unable to agree the remedying of the breach or a financial sum in damages in lieu.
The law in this area can be complex, especially in terms of limitations upon the sums that can be claimed in respect of terminal dilapidations however, our lawyers will guide you through the process and any court proceedings although in many cases a settlement can be agreed.
Please contact us today for a free no obligation telephone discussion by calling us on one of the two telephone numbers referred to at the top of this page, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Our Dispute Resolution Team
Commercial lease renewals
The Landlord and Tenant Act 1954 gives commercial tenants security of tenure and the right to renew the tenancy when it comes to an end. If the landlord and tenant agree that there should be a new tenancy, but cannot agree on its terms, either can apply to the court for a new tenancy. Or if the tenant wants a new tenancy, but the landlord refuses to grant one, the tenant can apply to the court. The court will then settle the rent and the other terms of the new tenancy.
Landlords can oppose renewal of the tenancy on certain grounds. Some are to do with the tenant's own conduct - for example, failure to pay rent. Others are to do with the landlord's needs - for example, where landlords want to redevelop premises or get them back for their own use. Landlords can either apply to the court to end the tenancy, or can oppose the tenant's application for renewal. The court will decide whether the landlord has grounds for opposing renewal, and whether or not to order a new tenancy.
The procedure for renewing a tenancy is complex. There are specific requirements and crucial time limits which, if not met, may affect a parties’ right to, or right to object to, the proposed new lease. Our lawyers are well versed in all the relevant laws and procedures and take all steps necessary to ensure that a client’s interests in relation to the proposed new lease are protected.
Please contact us today for a free no obligation telephone discussion by calling us on one of the two telephone numbers referred to at the top of this page, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Our Dispute Resolution Team
Breaches of Covenant
Commercial leases impose obligations on both landlords and tenants, by way of landlord and tenant covenants. If any covenants are breached by one party, then the other party may wish to take enforcement action against it to force compliance with the terms of the lease.
The main landlord covenants are likely to include peaceful enjoyment of the premises and to insure and repair the structure of the building.
Tenant covenants are far more extensive, including the covenant to pay rent and keep the premises in repair and the imposition of obligations in relation to things like subletting.
The action that a landlord or tenant may wish to take following a breach by the other will depend upon the circumstances of the case and will depend largely upon the terms of the lease, the commercial aims of the party seeking a remedy and whether the breach is remediable.
Potential remedies include forfeiture (in the case of a tenant breach), specific performance, an injunction (requiring the party in breach to do or refrain from doing something) and/or damages.
Our litigation lawyers are experienced in considering the circumstances of the case, advising upon the merits of the options available, serving any relevant notices and in commencing court proceedings as required.
Please contact us today for a free no obligation telephone discussion by calling us on one of the two telephone numbers referred to at the top of this page, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Our Dispute Resolution Team
Forfeiture of a Commercial Lease
A commercial landlord has the right to forfeit a lease where a tenant is in breach of a covenant.
A tenant’s security of tenure is protected by legislation however the landlord’s right to terminate the lease by exercising the right of forfeiture is preserved within that legislation (Landlord and Tenant Act 1954).
The right to forfeit and re-enter premises is essentially contractual and there must be a clause to that effect within the lease.
For all breaches other than rent arrears there is a formal procedure to be followed before forfeiture can take place (Section 146 Law of Property Act 1925).
Rent arrears are specifically excluded from the section 146 procedure however the landlord must formally demand the rent prior to forfeiture unless the lease makes it clear that no demand is necessary. In practice we would usually recommend that a formal demand be made.
In rent arrears cases it is also important to check the lease to establish how long the rent must be unpaid before forfeiture can be carried out. Most modern leases contain a clause for forfeiture and re-entry subject to rent being unpaid for either 14 or 28 days.
Exercising a right of forfeiture and re-entry demonstrates a landlord’s intention to terminate the lease and can be effected in 2 ways:
- Peaceable re-entry;
- Issuing court proceedings
Peaceable re-entry is only available in the case of a breach of the covenant to pay rent. All other claims for forfeiture for breaches of covenant must be pursued via the courts following service of any appropriate notices.
Once forfeiture has been effected there is provision for the tenant to apply to the court for relief. In most cases the courts will grant the tenant relief from forfeiture provided the tenant has rectified the breach e.g. paid any rent arrears in full, together with interest and any costs due.
The law surrounding forfeiture of a commercial tenancy is a complex area of law. There are procedural issues that must be followed or there is a risk that a landlord will lose their right to forfeiture and a tenant will lose their right to relief. Our lawyers are experienced at guiding client’s through this process, taking the necessary procedural steps and advising upon the do’s and don’ts that can affect the claim.
Please contact us today for a free no obligation telephone discussion by calling us on one of the two telephone numbers referred to at the top of this page, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Our Dispute Resolution Team
Dispute Resolution
