INSTRUCTING A SOLICITOR

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INSTRUCTING A SOLICITOR
Maximising Resources using your solicitor
cost-effectively

• Matthew Wales
• Partner
• Mason Hayes Curran
• www.mhc.ie

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WHEN DO YOU INSTRUCT?

• THE OLDER A DEBT IS THE HARDER IT IS TO COLLECT
• DO NOT PROCRASTINATE
• BE PREPARED TO LOSE A CUSTOMER

MASON HAYES CURRAN Solicitors
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WHAT FIRM DO YOU USE?

• DOES SIZE MATTER?
• A. SPECIALIST FIRM
• B. PROFILE / REPUTATION

MASON HAYES CURRAN Solicitors
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DONT BLINDLY USE YOUR EXISTING FIRM

• WHY?
• IT WILL PROBABLY TAKE LONGER THAT IT SHOULD DO.
• IT MAY COST MORE NOT SO FLEXIBLE ON FEES
• THEY MAY ONLY DO THE ODD CASE THAT COMES
  THROUGH THE DOOR
• THEY WILL LACK EXPERIENCE

MASON HAYES CURRAN Solicitors
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COSTS VERY IMPORTANT TO DISCUSS COSTS AND COST
IMPLICATIONS

• A. Fixed Fee
• B. Commission
• ADVANTAGES AND DISADVANTAGES
• FIXED FEE
• - YOU PAY THE FEE IF YOU WIN OR LOSE
• - IF LARGE CASE YOU MAY END UP PAYING LESS ON A
  FIXED FEE THAN A COMMISSION
• COMMISSION
• - IF THERE IS NO RECOVERY THERE IS NO FEE
• - MAY MOTIVATE YOUR SOLICITOR

MASON HAYES CURRAN Solicitors
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RECOVERY OF COSTS

• 50 TO 75 RECOVERY
• PROCEDING ISSUED INCLUDE CLAIM FOR COSTS NOT
  GENEROUS
• DEFENDED CASES
• (1) HOURLY RATE BASIS
• (2) HOW MUCH WILL THIS COST?
• (3) AS CASE PROCEEDS COSTS ARE AWARDED
• (4) IF CASE PROCEEDS TO TRIAL NORMAL ORDER IS
  THAT COSTS ARE AWARDED TO THE WINNER
• (5) COSTS TO BE TAXED IF NOT AGREED

MASON HAYES CURRAN Solicitors
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WHAT DOCUMENTATION DO I SEND TO MY SOLICITOR?

• A. PUT YOUR SOLICITOR IN THE PICTURE
• - ASK FOR SOLICITORS OPINION ON THE CASE
• B. IF CASE IS STRAIGHTFORWARD SEND
• (1) INVOICES
• (2) STATEMENT
• (3) COPIES OF CORRESPONDENCE
• ARE YOU WILLING TO ACCEPT A SHORT SETTLEMENT?
• REPORTING
• BE REALISTIC MONTHLY REPORTS
• BILLING
• AGREE BILLING PROCEDURE AT OUTSET OF CASE
• ACCEPT LITIGATION IS A RISK YOU MAY NOT WIN
• TWO WAY RELATIONSHIP

MASON HAYES CURRAN Solicitors
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INSTRUCTING A SOLICITOR
Maximising Resources using your solicitor
cost-effectively

• Matthew Wales
• Partner
• Mason Hayes Curran
• www.mhc.ie

9
LEGAL DEBT RECOVERYSmall Firms Association

• Colman Curran
• MASON HAYES CURRAN

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Three Courts ofFirst Instance

• District Court
• Circuit Court
• High Court
• (Supreme Court is only for appeals you cant
  start anything there)

MASON HAYES CURRAN Solicitors
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TWO WAYS A CASE CAN GO

• Default Judgment - no court hearing
• Defended Case court hearing with witness

MASON HAYES CURRAN Solicitors
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DISTRICT COURTUp to 6,300.00

• DEFAULT
• Civil Summons sent to debtor
• Affidavit of debt
• Affidavit Decree filed in DC Office
• Decree returned signed
• No court hearing

• DEFENDED
• Civil Summons sent to debtor
• Debtor replies with Notice of Intention to Defend
• Court hearing date fixed witness needed for
  court hearing
• Judge gives judgment

MASON HAYES CURRAN Solicitors
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CIRCUIT COURTFrom 6,300.00 to 38,000.00

• DEFAULT
• Civil Bill sent to debtor
• Affidavit of Debt
• Affidavit and other documents filed in Court
  Office
• Execution Order returned signed
• No court hearing

• DEFENDED
• Civil Bill sent to debtor
• Appearance written Defence from Debtor
• Court hearing date fixed witness is needed for
  court hearing
• Judgment Execution Order

MASON HAYES CURRAN Solicitors
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HIGH COURTAmounts over 38,000.00

• DEFAULT
• Summary Summons sent to debtor
• Affidavit of Debt
• Affidavit filed with other papers in HC Office
• Judgment FIFA issues
• No court hearing

• DEFENDED
• Summary Summons sent to debtor
• Appearance from debtor
• Masters Court hearing with no witnesses needed
  affidavit evidence given
• Master gives Liberty to Enter Judgment

MASON HAYES CURRAN Solicitors
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How Long Does it Take?

• Fast Default judgment up to 60 days
• Defended country case can take more than 6 months
  to get a court date

MASON HAYES CURRAN Solicitors
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COSTS

• Costs vary depending on the amount due and the
  court - they are generally low unless the case
  is a Defended one

MASON HAYES CURRAN Solicitors
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THE USUAL STORIES

• I never dealt with the creditor
• I never got the goods
• Im due credits agreed with your salesman
• Sue my company not me
• I will be counterclaiming for my losses

• The service was awful Im not paying
• We need PODs and copy invoices
• The creditor owes me money

MASON HAYES CURRAN Solicitors
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TERMINOLOGY TO CONFUSE

• SUMMONS is a generic word for
• Civil Summons (DC)
• Civil Bill (CC)
• Summary Summons (HC)

• JUDGMENT is a generic word for
• Decree (DC)
• Execution Order (CC)
• FIFA (HC)

MASON HAYES CURRAN Solicitors
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DELAYS

• Notice for particulars - solicitor must reply
• Motions for Discovery
• Sub-Service applications

• Adjournment requests
• Court vacations
• Debtor gone away - trace required
• Debtor appeals to higher court
• Court Office Backlogs

MASON HAYES CURRAN Solicitors
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THREE GOOD PAY POINTSIN THE JUDGMENT PROCESS

• Solicitors letter sent to debtor
• Summons served on debtor
• Judgment letter goes to debtor

MASON HAYES CURRAN Solicitors
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LEGAL DEBT RECOVERY

• Colman Curran
• MASON HAYES CURRAN

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GETTING PAIDJUDGMENT OBTAINED Small Firms
Association

• Eithne Redmond
• Legal Executive
• MASON HAYES CURRAN

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Now we have Judgment.What next?

• Publication
• Sheriff
• Judgment Mortgage
• Winding up
• Garnishee
• Installment Order Committal process
• Bankruptcy

MASON HAYES CURRAN Solicitors
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INTEREST

• Simple interest runs at 8 on all court judgments

MASON HAYES CURRAN Solicitors
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PUBLICATION OR REGISTRATION

• Not automatic - client must instruct solicitor to
  take this step
• Judgment is recorded in a special book in the
  High Court office
• Experian Gazette, Stubbs, Sunday Business Post,
  etc.
• Be careful!! - confirm its still an unpaid

MASON HAYES CURRAN Solicitors
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SHERIFF ACTION

• Some Sheriffs more effective than others - they
  are County Registrars with other duties
• Can you identify the debtors assets? -
• Diary your file for review and withdraw from
  Sheriff if no progress within 60 days

MASON HAYES CURRAN Solicitors
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JUDGMENT MORTGAGES

• Debtor must have a property asset with some
  equity left
• Searches can establish this and the extent to
  which the property is already mortgaged
• Judgment mortgage affidavit sworn by creditor
  registered in Land Registry or Registry of Deeds
• Forced sale of property possible
• Debtor cannot sell without paying Creditor

MASON HAYES CURRAN Solicitors
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WINDING UP

• 21 Day Demand - alarming for Debtor Co.
• Petition date fixed - approx. 6 weeks later
• Advertisements in newspapers - other creditors
  can come in
• Hearing of Petition
• Wind up order made and Liquidator appointed

MASON HAYES CURRAN Solicitors
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Garnishee

• Debt due to Debtor by third party
• Court can order third party to pay judgment
  creditor
• Good intelligence needed
• Timing is important
• Application is by Motion supported by affidavit

MASON HAYES CURRAN Solicitors
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INSTALMENT ORDERS COMMITTALS

• District court process for all debts due by
  individuals
• Debtor examined as to his/her means
• Installment order made and served on debtor
• If he defaults - Committal application - Witness
  required
• Committal warrant sent to the Gardai

MASON HAYES CURRAN Solicitors
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Bankruptcy

• Not really a debt collection remedy
• Lengthy process
• Official Assignee is in charge
• Only for high net worth debtors
• Can take years for an interim dividend to be
  declared
• It is like a winding-up of a person!

MASON HAYES CURRAN Solicitors
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AND FINALLY

• SUMMONS is a generic word for
• Civil Summons (DC)
• Civil Bill (CC)
• Summary Summons (HC)

• JUDGMENT is a generic word for
• Decree (DC)
• Execution Order (CC)
• FIFA (HC)

MASON HAYES CURRAN Solicitors
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GETTING PAIDJUDGMENT OBTAINED

• Eithne Redmond
• Legal Executive
• MASON HAYES CURRAN