Someone recently bought our

students are currently browsing our notes.

X

Unit 9 – Tactics In Commercial Disputes Notes

LPC Law Notes > Commercial Dispute Resolution Notes

This is an extract of our Unit 9 – Tactics In Commercial Disputes document, which we sell as part of our Commercial Dispute Resolution Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Commercial Dispute Resolution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Unit 9 - Consolidation CDR

Disadvantages of litigation against a debtor:Time consuming - debtor can stall entry of judgement (14 days from CF to file ack then they get 20 days from CF for defence - you then have to apply to strike out defence or summary judgement - could take weeks) Costs unlikely to be recovered in full - costs for CF/interim app/sol costs ALL unlikely to be paid in full Entering judgement does not guarantee payment - judgement can affect D credit rating but many D will still ignore Judgements can be ignored May need to take steps to enforce judgement - more time and costs Litigation stayed if debtor becomes bankrupt/is wound up - client ranks as 'unsecured creditor'If D owns a property, judgement can be enforced by obtaining a charging order which would mean C is a secured creditor

PREP TASK:

1. 2.

Clause 7.1/2 has been breached potential breach of clause 6 - not putting notice on invoice Lancashire can check Pipers b/a - clause 19 What client is liable to pay under factoring agreement
- pay the money (PS160,000)to Piper with interest 5% over base

3. What step scan Lancashire Capital Plc take in relation to alleged debt Commence a debt action - CF followed by summary judgement - Piper no reasonable chance of defending CPR 24.2 Enforce their security - COR 8 (fixed over business premises/floating over debtors/stock) Petition for winding up Terminate the contract (Clause 17.2.1.)

4. Further info needed from client
- Has the money been paid by Stockport to Piper
- Had Lancashire previously been offered the debt
- Did they stick notices on the invoices
- Financial situation of Piper (debts)
- What do Lancashire have security over OUTCOME 1 - procedural and tactical steps possible and why takes them D can pay but is stalling for time Advice to C

Corporate insolvency Undisputed amount of
PS750 or more, Piper will WANT to pay, they wont they bad publicity/potential of going insolvent if they owe other creditors/might make it difficult for them to trade/Insolvency procedure takes time and costs money

D can't pay full amount CF + Summary judgement No defence with real prospect of success, C gets a quick judgement, can take enforcement action and become a secured creditor Don't want to do use corporate insolvency as will tell other creditors that D doesn't have enough money to pay everyone

D doesn't think they owe full amount and will resist paying CF + interim payment Disputed debt but at least PS750 undisputed, best option to try and get some money while D and C argue/go to trial over full amount due (no reason not to go for summary judgement at same time as procedure and time limits are the

D is overdrawn but director of D co gave personal guarantee Personal insolvency D must have some assets otherwise you wouldn't have accepted the guarantee

Advice to D

Pay the debt now before a winding up petition is issued

Attempt to negotiate with creditor

same) Negotiate over the amount due

We can't advise D personally as we represent company (O3.5 conflict of interest) tell the director to go and get independent advice

OUTCOME 2 - grounds for interim apps Interim App

Strike out statement of case When When there should it be isn't any used legal basis for the other party's case Grounds CPR 3.4 - strike out statement of case on grounds that:

1. it discloses no reasonable grounds for bringing/defen ding claim

2. it abuses courts process

Procedure

1. Try to resolve with other side first OO

2. Serve N244 with WS (CPR

24.7) on party at least 3 days before hearing (CPR

23.7(1) - unless other time limits given Other

CF +Summary Judgement

CF + Interim Payment

Security for costs (D only!)

When the opposing parties case isn't very strong

When you want to force D to make an early payment of damages

When D is worries that C will not be able to pay costs

CPR 24-

CPR 25.7
- D admitted liability to pay damages; or
- C has obtained judgement against D for damages to be assessed; or
- C would obtain judgement of a substantial amount of money if went to trial

Court must be satisfied that it is just to make such an order, plus one of the CPR 25.13(2) grounds:

1. C is resident outside of the EU (company or individual)

2. C is a company and there is reason to believe that it will be unable to pay D costs if ordered to do so

Claim has no real prospect of success

24.2(a)(i) Defence has no real prospect 24.2(a)(ii)

If judge refuses summary judgement app then C can apply for a conditional order if give D notice of intention to do so before hearing and judge will order that D pay full amount of % of C's claim

CPR 24.2 - (1)(a) D has to file ack of service or defence
- 24.4(3) C must give 14 days notice of hearing +issue to be decided
- 24.5(1) D can serve evidence at least 7 days before hearing
- 24.5(2) C can serve response at least 3 days before hearing Adv
- Early end to proceedings saves time and costs

Adv:
- Enforce judgement over premises + turn into a secured creditor Risks to C:
- Other creditor may

Must provide detailed breakdown of costs incurred to date and those likely to be incurred
- CPR 25.6(3) app C must provide notice and evidence - Bank guarantee served at least 14
- Pay money into days before hearing court
- CPR 25.6(4) D may - Pay money into joint serve written account held by evidence in response parties sol at least 7 days before hearing
- CPR 25.6(5) C respond by written evidence before hearing Interim payments How much might D be ordered to pay?
- CPR 25.7(4)
- No more than a reasonable proportion of likely final judgement taking into account contributory negligence and any set off or counterclaim that

Buy the full version of these notes or essay plans and more in our Commercial Dispute Resolution Notes.