Statutory Demand Solicitors London and Hertfordshire

What should you do if you are an individual and receive a Statutory Demand?

It is always best to act promptly.  If you are an individual, an application should be made to the Court to set aside the Statutory Demand within eighteen days of service.  The Court has jurisdiction to extend the time period for such application and in fact, obtaining such extension of time is not too difficult.  However, it is always best to make the application within time.  If an application is made within the eighteen days, then the Claimant will not be able to issue a Bankruptcy Petition until the application to set aside has been determined. This is always a risk if the application is, in fact, only made after the 18-day time limit has passed. Once a petition has been issued, then it is not possible to apply to set aside the statutory demand

There are a number of grounds of contesting a Statutory Demand.

The normal ground is that the debt is disputed upon substantial grounds.  The hurdle is relatively low and if the individual can establish that there is an arguable bona fide defence to the debt claim then normally the Statutory Demand will be set aside.  It is also a defence if there is a bona fide and substantial cross-claim or counterclaim.

The defence or cross-claim/counterclaim must be sufficient to reduce the amount claimed in the statutory demand to below the bankruptcy limit (which is currently £5,000.)

There is also a defence that there is an offer to pay (or compound) the debt claimed or to secure it.  In practice, the ambit of an offer of security is fairly limited.  In relation to a property, it is generally necessary that the property be on the market and the purchaser to be in the wings waiting to buy the property.

The offer of compounding the debt is also fairly limited.  A Court will allow a relatively short period for payment to be made by instalments say over two months.  But do not expect to defend a Statutory Demand on the basis that you want to pay the debt over a longer period of time by instalments.

In practice in this situation where the debt is not disputed, it is not uncommon to obtain specialist finance (usually bridging finance) to pay the debt and therefore avoid bankruptcy.

Bankruptcy would usually be a financial disaster.  It is possible to annul or set aside a Bankruptcy Order, but this is a relatively expensive exercise.  It would involve paying all of your creditors as well as the costs and expenses of the bankruptcy. The costs of the Official Receiver will be a general fee of (currently) £6,000 if bankruptcy remains with the Official Receiver, but a private Trustee is appointed such costs could amount to more than £30,000 or £40,000 or even more. (in fact, it is possible to challenge the costs of a private trustee within the context of an annulment application).

If a Trustee in Bankruptcy were to sell your property, then the sale price that is achieved is usually not that good. This, unfortunately, is relatively common with forced sales.

Also, any monies realised by a trustee in bankruptcy will need to be banked by the Trustee into the Bank of England Insolvency Services account.  Tax (known as ad valorem duty) (which is used to run the Insolvency Service) is deducted from the money paid into this account at different scale rates, but the average rate is 15%.  Accordingly, if money is banked in the Bank of England Insolvency Services account by the Trustee, an average of 15% is lost in tax.

Accordingly, the raising of bridging or insolvency finance to pay off a bankruptcy Statutory Demand – or indeed a bankruptcy petition if the matter is at that stage, is usually a fairly worthwhile exercise.

There are a number of specialist lenders who can provide such finance, and we can introduce you to an independent broker – who has no connection with our firm, who may be able to assist.

Bridging finance normally involves an arrangement fee (often in the region of £5,000) together with a rolled-up interest over six to twelve-month period. No monthly interest is paid- but the interest is rolled up. The intention is after the Bankruptcy Petition has been set aside for the money to be re-financed in the market at usual commercial rates – which are much lower. Alternatively, the property will need to be sold to pay off the bridging finance.

An application to set aside a Statutory Demand will be subject to directions hearing and which is followed by a contested Hearing.  The evidence would be given by way of Witness Statements.

The matter, however, is commonly settled by agreement between the parties.

Judgment or liability Order

Generally, a Court would not go behind a Judgment or Liability Order.  There are difficulties in applying to set aside a Judgment Order or Liability Order after a Bankruptcy Order has been made due to the fact that all rights of the bankrupt at that point in time vests in his Trustee in Bankruptcy – initially being the Official Receiver.  And accordingly, urgent action needs to be taken at Statutory Demand stage to deal with any issues such as applying to set aside a Judgment in default which has been obtained (such as where the proceedings have not been received by the debtor, and the debtor wishes to contest the Claim).

In relation to a liability order, an application can be made to set such order aside, – which ahs to be made promptly- or in the case of council tax, the matter can also be appealed (after raising a formal complaint with the Local authority) to the decision of the First-Tier Tribunal.

We are very aware of the stress which can be caused by receiving a Statutory Demand, and we will use our experience to assist and endeavour to resolve the matter.  If the matter is urgent, we will endeavour to see a new client on the same day.